Bsu16 v Minister for Immigration - [2018] FCCA 3366

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSU16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3366

Catchwords:
MIGRATION –Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal to affirm decision of a delegate of the Minister for Immigration and Border Protection not to grant the Applicant a protection visa – assertion that Administrative Appeals Tribunal relied on findings of an earlier Tribunal differently constituted and did not make its own examination of the applicants’ claims, that it failed to afford to the applicant procedural fairness and that it did not again consider the Refugees Convention criterion even though an earlier Refugee Review Tribunal decision had already considered his Refugees Convention claims – none of the grounds made out – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Evidence Act 1995 (Cth), s.43

Migration Act 1958 (Cth), ss.36, 48A

Migration Regulations 1994 (Cth)

Cases cited:

AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424
AWA15 v Minister for Immigration [2018] FCA 604
SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112

Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

First Applicant:

BSU16

Second Applicant:

BSV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1785 of 2016

Judgment of:

Judge Dowdy

Hearing date:

28 November 2017

Delivered at:

Sydney

Delivered on:

26 November 2018

REPRESENTATION

The Applicants each appeared in person.

Counsel for the First Respondent:

Mr T. Reilly of Counsel

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 12 July 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1785 of 2016

BSU16

First Applicant

BSV16
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The First Applicant in this proceeding is a male citizen of China aged 49 years, having been born on 26 November 1969.
The Second Applicant in this proceeding is a male citizen of China aged 28 years, having been born on 16 November 1990. He is the son of the First Applicant (collectively the Applicants).
By Application filed in this Court on 12 July 2016 they seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 28 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 3 February 2015 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)).

Background

The Second Applicant applied for a Student (Class TU) (Subclass 580) visa (Student visa) offshore on 3 December 2007 and was granted it on…

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 3366
Decision Date: 26 November 2018

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed a delegate of the Minister for Immigration and Border Protection's refusal to grant the applicant a protection visa. The applicant contended that the AAT had erred in several respects.

The central legal issues before the Court were whether the AAT had committed jurisdictional error by: (1) relying on the findings of an earlier, differently constituted Tribunal without conducting its own independent examination of the applicant's claims; (2) failing to afford the applicant procedural fairness; and (3) failing to reconsider the criteria under the Refugees Convention, despite a prior Refugee Review Tribunal decision having already addressed these claims.

Dowdy J found that none of the grounds of review were made out. His Honour reasoned that the AAT was entitled to consider and rely upon the findings of previous tribunals, provided it engaged with the applicant's case and made its own assessment. The Court determined that the AAT had afforded the applicant procedural fairness and had indeed considered the relevant criteria under the Refugees Convention. Consequently, no jurisdictional error was established.

The application for judicial review was dismissed.

Orders