BSJ15 v Minister for Immigration - [2016] FCCA 984

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSJ15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 984

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal found it had no jurisdiction as the review application was lodged 23 years after the applicant was notified of the departmental decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.115, 116
Migration (Review) Regulations 1989 (Cth)
Migration (Review) Regulations 1993 (Cth)

Cases cited:
Chan Ta Srey v the Minister for Immigration [2003] FCA 1292
Minister for Immigration v Singh [2000] FCA 377

Applicant:

BSJ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2331 of 2015

Judgment of:

Judge Driver

Hearing date:

27 April 2016

Delivered at:

Sydney

Delivered on:

27 April 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms C Hillary of DLA Piper

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2331 of 2015

BSJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 23 July 2015. The Tribunal found that it did not have jurisdiction in relation to the review application before it. The background facts relating to this matter are conveniently set out in the Minister’s outline of legal submission filed on 20 April 2016.
The applicant is a male citizen of Malaysia. He applied for refugee status and a domestic protection entry permit (subclass 784) on 24 July 1991.[1]
[1] Court Book (CB) 1-51.
The applicant gave the same residential address in both applications.
The applicant gave a postal address in both applications.[2]
[2] This was the address of the applicant’s migration agent.
A decision was made within the Minister’s department to refuse the application for refugee status on 31 March 1992.[3] The applicant was notified of this decision, and the decision to refuse the application for a domestic protection entry permit, by letter dated 31 March 1992[4] and addressed to the applicant’s postal address.
[3] CB 62-64.
[4] CB 59-61.
I note that s.115 of the version of the Migration Act 1958 (Cth) (Migration Act) in force at that time provided for the internal review of delegate's decisions. There is no evidence that such an internal review was sought. Pursuant to s.116 of the Migration Act, as in force at the time of the delegate's decision, under the heading of “Applications for review by Tribunal”,…

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: [2016] FCCA 984
Decision Date: 27 April 2016

CaseChat Overview and Summary

The applicant, BSJ15, 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 matter came before Driver J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate of the Minister, in assessing the applicant's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process. Specifically, the Court was asked to determine if the delegate had adequately considered the applicant's fear of persecution based on their membership of a particular social group.

Driver J found that the delegate had failed to properly consider the applicant's claims regarding their membership in a particular social group, which was a crucial element of the protection visa application. The Court reasoned that the delegate's assessment had been too narrow and had not engaged with the evidence presented by the applicant in a way that satisfied the requirements of the *Migration Act 1958* (Cth) and relevant case law concerning the definition of a "particular social group." The Court applied the principles established in cases dealing with the assessment of claims for protection visas, emphasizing the need for a comprehensive and nuanced evaluation of the applicant's circumstances and fears.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders