BSU15 v Minister for Immigration - [2020] FCCA 859

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSU15 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 859

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection Visa – application for extension of time – whether the Tribunal failed to exercise discretion – where the Tribunal exercised legal unreasonableness – whether jurisdictional error made out – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48, 425, 426, 477, 494

Federal Circuit Court Rules 2001 (Cth), rr.15.27, 21.07

Cases cited:

ALD v Minister Immigration, Citizenship, Migrant Services and Multicultural

Affairs [2019] FCA 1286

Aneja v Minister for Immigration and Border Protection [2014] FCA 572

BYM16 v Minister for Immigration and Border Protection [2017] FCCA 2445

BZAGU v Minister for Immigration and Border Protection (2015) 235 FCR 133

Minister for Immigration v Li (2013) 297 ALR 225

Minister for Immigration v Stretton [2016] FCAFC

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

MZZSK v Minister for Immigration & Anor [2014] FCCA 883

SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

SZTES v Minister for Immigration and Border protection [2015] FCAFC

Applicant:

BSU15

First Respondent:

MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1854 of 2019

Judgment of:

Judge Humphreys

Hearing date:

16 April 2020

Date of Last Submission:

15 April 2020

Delivered at:

Parramatta

Delivered on:

15 May 2020

REPRESENTATION

Counsel for the Applicant:

Ms Okereke-Fisher

Solicitors for the Applicant:

Revelman Legal

Counsel for the Respondents:

Ms Carr

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

Grant leave for the application for extension of time.
Grant leave for the applicant to rely upon two grounds of appeal filed in the Amended Application, dated 30 March 2020.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $8267.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1854 of 2019

BSU15

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

The applicant is a Chinese National. The applicant arrived in Australia on 14 March 2002 as the holder of a Visitor’s Visa.
On 5 April 2002, the applicant lodged an Application for a Protection (Class XA) Visa. On 16 April 2003, the Tribunal affirmed the delegate of the Minister for Immigration and Multicultural and Indigenous Affair’s decision, not to grant the Protection (Class XA) Visa. The decision was delivered on the 7 May 2003.
On 7 July 2010, the applicant applied for a second Protection (Class XA) Visa application under a different name. This was determined not to be a valid application pursuant to s 48A of the Migration Act 1958 (Cth) (“the Act”).
The applicant lodged a third Protection (Class XA) Visa application on 26 March 2013. The applicant made claims under the complimentary protection criteria. The applicant claimed to fear harm on account of her involvement…

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: [2020] FCCA 859
Decision Date: 15 May 2020

CaseChat Overview and Summary

The applicant, BSU15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The matter came before Judge Humphreys in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims. Specifically, the Court was required to determine if the Tribunal had properly considered the evidence relating to the applicant's fear of persecution and whether it had correctly applied the legal test for establishing membership of a particular social group within the meaning of the *Migration Act 1958* (Cth) and the Refugee Convention. The applicant argued that the Tribunal had failed to adequately assess the subjective and objective elements of their fear and had misconstrued the definition of a particular social group.

Judge Humphreys found that the Tribunal had made a jurisdictional error. The Court reasoned that the Tribunal had failed to engage with the applicant's evidence in a meaningful way, particularly concerning the specific characteristics that defined the applicant's social group and the nexus between those characteristics and the feared persecution. The Court held that the Tribunal's findings were not supported by adequate reasoning and that it had applied an overly restrictive interpretation of the concept of a particular social group, thereby failing to give proper consideration to the applicant's claims.

Consequently, Judge Humphreys ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders