BSE17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BSE17 v Minister for Home Affairs [2018] FCA 1926

Appeal from: BSE17 v Minister for Immigration & Anor [2018] FCCA 201
File number: VID 246 of 2018
Judge: MOSHINSKY J
Date of judgment: 30 November 2018
Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – protection visa – whether Tribunal acted without evidence or illogically – whether Tribunal failed to consider an integer of the appellant’s claim or failed to take into account relevant information – appeal dismissed
Legislation:

Migration Act 1958 (Cth), s 45AA

Migration Regulations 1994 (Cth), reg 2.08F
Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
Date of hearing: 14 August 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 47
Counsel for the Appellant: Ms SM Kelly
Solicitor for the Appellant: Asylum Seeker Resource Centre
Counsel for the First Respondent: Mr B Petrie
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 246 of 2018
BETWEEN:

BSE17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MOSHINSKY J

DATE OF ORDER:

30 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application for an extension of time to file a notice of appeal be granted.

2.The draft notice of appeal received by the Court on 2 March 2018 stand as the appellant’s notice of appeal.

3.The appeal be treated as instituted and heard instanter.

4.The appeal be dismissed.

5.The appellant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

6.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

7.In the absence of any agreement pursuant to paragraph 6 of these orders, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

8.Within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

9.In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

  1. The applicant, who it will be convenient to refer to as the appellant, arrived in Australia by boat in…

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Details
Case
[2018] FCA 1926
Decision Date

CaseChat Overview and Summary

In the case of BSE17 v Minister for Home Affairs, the appellant, a citizen of Vietnam, appealed against the decision of the Administrative Appeals Tribunal to refuse to grant him a Protection (Class XD) visa, following the refusal of a Protection (Class XA) visa. The Tribunal had remitted the matter for reconsideration after an initial decision of the Refugee Review Tribunal was set aside by the Federal Circuit Court. The appellant's claims involved a physical confrontation with security forces in 2007 over the excavation of a cemetery, which led him to fear for his safety and ultimately to leave Vietnam. The central legal issues were whether the Tribunal acted without evidence or illogically, failed to consider an integer of the appellant’s claim, or failed to take into account relevant information.

The court examined the evidence presented by the appellant and the findings of the Tribunal. It was noted that the Tribunal had accepted the occurrence of the events in 2007 and the appellant's involvement in a physical confrontation with security forces. The court found that the Tribunal's decision was not without evidence or illogical, and there was no indication that it had failed to consider relevant information or an integer of the appellant's claim. The Tribunal had made detailed findings and provided a reasoned explanation for its decision. The court concluded that the Tribunal had properly exercised its discretion and that the appeal did not succeed on any of the grounds raised.

As a result, the appeal was dismissed, and the appellant was ordered to pay the Minister's costs, which were to be determined by a lump sum. The court also directed the parties to file any agreed proposed minute of orders for the costs within 14 days, and if no agreement was reached, to follow a specific process for determining the appropriate costs.

Orders

Orders of the court

1. The application for an extension of time to file a notice of appeal be granted.

2. The draft notice of appeal received by the Court on 2 March 2018 stand as the appellant’s notice of appeal.

3. The appeal be treated as instituted and heard instanter.

4. The appeal be dismissed.

5. The appellant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

6. Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

7. In the absence of any agreement pursuant to paragraph 6 of these orders, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

8. Within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

9. In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the appeal is to be dismissed.Background facts In May 2013, the appellant, a citizen of Vietnam, arrived in Australia by boat. On 11 June 2014, the appellant applied for a Protection (Class XA) visa. On 16 December 2014, a delegate of the Minister refused the application for the visa. On 1 April 2015, the RRT affirmed the decision not to grant the appellant a protection visa. An application for judicial review of the decision of the RRT was dismissed by the Federal Circuit Court. The appellant appealed to this Court. Orders were made by this Court by consent setting aside the decision of the RRT and remitting the matter for reconsideration by the Administrative Appeals Tribunal (referred to in these reasons as the “Tribunal”). The appellant appeared and gave evidence at two hearings before the Tribunal. (The first hearing took place in two parts due to the appellant seeking an adjournment.) On 12 April 2017, the Tribunal decided to set aside the decision to refuse to grant the appellant a Protection (Class XA) visa and to substitute a decision to refuse to grant the appellant a Protection (Class XD) visa. (As explained in the Tribunal decision, by operation of s 45AA of the Migration Act 1958 (Cth) and reg 2.08F of the Migration Regulations 1994 (Cth), from 16 December 2014, an application for a Protection (Class XA) visa was taken to be, and to have always been, an application for a Protection (Class XD) visa.) The Tribunal summarised the appellant’s claims at [38] of its decision. The appellant claimed that: he fled Vietnam because, while visiting his parents he clashed with government employees and police who were trying to excavate a cemetery in his home town; being summonsed by the police on the following day, he chose not to attend for fear of what would happen to him and instead he returned to his place of residency and work in the capital city of the province; he lived in fear during this period and moved around a lot; he then found work and he led a solitary life fearing being found by the police who he was told were still looking for him; and seeing no future in such a life he decided to pay people smugglers to take him across the border and then to Australia. At [41]-[59] of its decision, the Tribunal made a number of findings of fact. Relevantly for present purposes, at [42], the Tribunal described the appellant’s claims in relation to a “melee” with security forces in 2007. As set out in that paragraph, the appellant claimed that: in November 2007, when he was returning to his home town, he saw a group of people having arguments next to the parish cemetery; there were two trucks with people digging up the tombs; angry that this was occurring, he went to get more people and tried to stop the tomb dig; together with others, he confronted the workers and asked why they were digging up the tomb; in the process, they entered into an argument that led to a physical confrontation; despite the confrontation, the work continued and civil forces along with the police and some thugs were brought in to help protect the workers; there were 100 protestors and about 70 on the side of the government; there were arguments and fighting; the government used poles and sticks and the protestors used tree branches; he was badly hurt as a result of being beaten; and after that, he escaped. The Tribunal accepted that these events occurred and that the appellant was involved in a melee with security forces.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For these reasons, I reject ground 3.Conclusion It follows from the above that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the appellant pay the Minister’s costs, to be fixed by way of a lump sum.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.