BSK15 v Minister for Immigration - [2018] FCCA 1191

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSK15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1191

Catchwords:
MIGRATION – Protection (class XA) visa – Sri Lankan – Sinhalese ethnicity and catholic religion – unauthorised maritime arrival – Refugee Review Tribunal affirmed a decision of the minister’s delegate not to grant the applicant a protection (class XA) visa– applicant had 35 days to commence proceeding – extension of time application filed almost two years after tribunal decision – extension of time application dismissed.

Legislation:
Migration Act 1958, ss.36(2)(a), 36(2)(aa), 425, 425A, 441A, 441C and r4.35(d)

Cases cited:

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Jess v Scott (1986) 12 FCR 187

Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618

L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114

MZAPB v Minister for Immigration and Border Protection (2015) 242 FCR 585
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83

SZHFX v Minister for Immigration and Citizenship [2008] FCA 355

SZIQP v Minister for Immigration and Citizenship [2008] FCA 169

SZOZG v Minister for Immigration and Citizenship [2011] FCA 756

SZQGO v Minister for Immigration and Citizenship [2012] FCA 177

SZRIQ v Federal Magistrates Court of Australia & Ors (2013) 139 ALD 252

SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158

Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211

Applicant:

BSK15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1946 of 2015

Judgment of:

His Honour Judge Wilson

Hearing date:

5 March and 18 April 2018

Date of Last Submission:

18 April 2018

Delivered at:

Melbourne

Delivered on:

24 April 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the First Respondent:

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The extension of time application filed 25 August 2015 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $3,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1946 of 2015

BSK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

When this case was heard on 5 March 2018 the applicant informed me that by reason of his affected mental condition, he was unable to meaningfully participate in the hearing. On that date, Ms Kawalewska for the minister, recognised that the applicant should be given an opportunity to adduce such psychiatric or psychological evidence as he was able to assist in demonstrating his mental fabric as at the date of the tribunal hearing on 8 February 2013. I so ordered.
The applicant did not adduce evidence of any description to comply with my orders of 5 March 2018. As a consequence, at an evidentiary level this case stood on 18 April 2018 in precisely…

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 1191
Decision Date: 24 April 2018

CaseChat Overview and Summary

The applicant, BSK15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before His Honour Judge Wilson in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider or apply the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly in relation to the assessment of the applicant's claims for protection.

His Honour Judge Wilson found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's claims regarding past persecution and the real chance of future persecution in their country of origin. The Court applied the principles established in cases concerning the assessment of protection claims, emphasizing the need for a comprehensive and objective evaluation of the evidence presented by the applicant. The delegate's assessment was found to be flawed due to an insufficient analysis of the country information and its application to the applicant's specific circumstances.

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

Orders