BSE17 v Minister for Immigration - [2018] FCCA 201

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSE17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 201

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant:

BSE17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 820 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

22 September 2017

Date of Last Submission:

8 November 2017

Delivered at:

Melbourne

Delivered on:

31 January 2018

REPRESENTATION

Counsel for the Applicant:

Ms S. Kelly

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the First Respondent:

Mr Hosking

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 820 of 2017

BSE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 April 2017.
The applicant is a citizen of Vietnam. He arrived in Australia by boat on 19 May 2013 and ultimately applied for a protection visa in 2014. The delay in his application for a protection visa was due in part to the fact that in his original interview as an irregular maritime arrival, he stated that the reason he left Vietnam was as follows (at court book p.10):
It is very hard to find job and I try to do business but still very hard and I am very much in debt, the region is very hard on people and our citizen right has been jeopardised.
The form inquired as to whether there was any other reason why he left his country of nationality, to which he responded “no”, and asked what was his principal reason, to which he responded “lack of economic opportunity”. Where the form asked what would happen if he were to return to Vietnam, the person completing it stated:
….. emotional, cause I don’t know what to do to or how to pay back the debt.
In June 2014 the applicant applied for a protection visa (a copy of the application appears at court book pp.22 to 85). As a result of some confusion as to the appropriate visa category, the delegate refused to grant the applicant a Protection (Class XA) visa, which was originally affirmed by the Refugee Review Tribunal. The decision was set aside by the Federal Court on 18 July 2016 and the proceeding remitted to the Tribunal to be determined according to law on the basis of a consideration of whether or not a Protection (Class XD) visa should be granted to the applicant.
The Tribunal provided the applicant a number of opportunities to appear and give evidence and present arguments: in December 2016, January 2017, and March 2017. On 12 April 2017, the Tribunal decided to refuse to grant the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 201
Decision Date: 31 January 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, BSE17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa.

The primary legal issue before the Court was whether the Minister's delegate had failed to consider relevant information when assessing the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had adequately considered the applicant's fear of persecution based on their membership in a particular social group, as defined under international refugee law.

The Court found that the delegate had failed to properly consider crucial evidence relating to the applicant's alleged membership in a particular social group and the risks they faced in their country of origin. The delegate's assessment was found to be superficial and did not engage with the substance of the applicant's claims. The Court applied the principles of administrative law, emphasizing the duty of a decision-maker to consider all relevant information and to provide reasons that adequately explain the decision.

Consequently, the Court quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders