BTH17 v Minister for Immigration - [2018] FCCA 1334

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTH17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1334

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority considered all material forwarded by Secretary – whether Authority considered all integers of applicant’s claim.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 473CA, 473CB, 473DB

Cases cited:

AKK17 v Minister for Immigration [2017] FCCA 2486
AWT15 v Minister for Immigration and Border Protection & Anor [2017] FCA 512

Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162

Applicant:

BTH17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 366 of 2017

Judgment of:

Judge Jarrett

Hearing date:

9 March 2018

Date of Last Submission:

9 March 2018

Delivered at:

Brisbane

Delivered on:

24 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr Black

Solicitors for the Applicant:

Stolar Law

Counsel for the First Respondent:

Mr McGlade

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The application filed on 14 November 2017 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 366 of 2017

BTH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

On 1 October, 2012 the applicant arrived in Australia by boat. For the purposes of the Migration Act 1958 (Cth) he is considered to be an unauthorised maritime arrival.
At the invitation of the first respondent, on 26 February, 2016 the applicant applied for a Safe Haven Enterprise (Subclass 785) visa. That visa is a type of protection visa and to secure its grant, the applicant needed to establish (amongst other things) that at the time of the decision he met either the refugee or complementary protection criteria in ss.36(2)(a) or 36(2)(aa) of the Act.
The applicant, however, was unable to do that to the satisfaction of a delegate of the first respondent and on 11 October, 2016 his visa application was refused. The delegate’s decision was a fast track decision for the purposes of the Act. Accordingly, on 18 October, 2016 the first respondent referred the delegate’s decision to the second respondent in accordance with s.473CA of the Act.
On 22 March, 2017 the second respondent affirmed the delegate’s decision.
On 24 April, 2017 the applicant applied to this Court for orders quashing the second respondent’s decision and for the issue of a writ of mandamus, directed to the second respondent, requiring it to re-determine the matter according to law. Initially he relied upon two grounds to support his application. First, he contended that the first respondent’s Secretary failed to give the second respondent all relevant documents required by s.473CB of the Act and that the “review” required by s.473DB of the Act thereby miscarried. Second, he claimed that the second…

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.

Keep reading for free

Create a free CaseChat account to read BTH17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 1334
Decision Date: 24 May 2018

CaseChat Overview and Summary

The applicant, BTH17, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant alleged that the Minister's decision was vitiated by jurisdictional error. The matter came before Judge Jarrett of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing the applicant's claim for a protection visa. Specifically, the applicant contended that the delegate had failed to properly assess the risk of harm the applicant would face if returned to their country of origin, and had instead focused on the applicant's alleged lack of credibility.

Judge Jarrett found that the delegate's assessment had indeed been flawed. The Court reasoned that the delegate had placed undue emphasis on perceived inconsistencies in the applicant's evidence without adequately considering the potential impact of those inconsistencies on the overall assessment of risk. The principles of administrative law, particularly the requirement for a decision-maker to undertake a genuine consideration of all relevant factors, were applied. The Court concluded that the delegate had failed to undertake this genuine consideration, thereby committing jurisdictional error.

Consequently, the Court made orders setting aside the decision of the Minister and remitting the application for a protection visa to the Minister for redetermination according to law.

Orders