BTK15 v Minister for Immigration - [2015] FCCA 2586

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTK15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2586

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa –procedural fairness – whether the decision of the ITOA was ultra vires – no jurisdictional error – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 r.44.12

Migration Act 1958 (Cth), ss.197C, 474(3)(h), 476, 477

Applicant:

BTK15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 403 of 2015

Judgment of:

Judge Street

Hearing date:

18 September 2015

Date of Last Submission:

18 September 2015

Delivered at:

Sydney

Delivered on:

18 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R Hooker

Australian Government Solicitor

ORDERS

The Court’s order 1 made on 8 September 2015 is dissolved.
The application in a case is dismissed.
The application be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 403 of 2015

BTK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of an ITOA assessment made on 30 April 2015 in respect of which the applicant raised three grounds:
1. Not following the rules of natural justice.
2. Error of law on the face of the record.
3. Review of delegated legislation on grounds of ultra-virus.
The nature of the relief sought by the applicant included injunctive relief and prerogative relief. The ITOA assessment referred to was made on 30 April 2015 and the application was filed 1 September 2015 and, although not a decision itself a migration decision within s.476, it is clearly a step preparatory to the exercise of the Minister’s powers under s.474 (3)(h).
The applicant has also filed an application in the case seeking an interlocutory injunction, which was granted on 8 September 2015 up to 4.15pm today. That application in the case was advanced on the grounds that the applicant has been served with a notice of intention to remove from Australia and I accept that, in those circumstances, there is a step that has been taken which is within this Court’s jurisdiction under s.476 and that the requirements of s.477 are not an impediment in relation to that injunction application.
The applicant has a long migration history, including various travel to Malaysia, Vietnam, Hong Kong and travel arrangements for Canada and to India prior to arriving at Christmas Island on 7 February 2010. Thereafter, the applicant has been the subject of an entry interview conducted on 12 March 2010, a refugee status assessment conducted on 22 July 2010, an independent merits review conducted on 1 April 2011, a request for judicial intervention which was…

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: [2015] FCCA 2586
Decision Date: 18 September 2015

CaseChat Overview and Summary

BTK15 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant the applicant a protection visa. The applicant, who claimed to be a citizen of Afghanistan, alleged that they had been persecuted in their home country due to their ethnicity and political opinion. The Minister's decision was based on adverse security assessments concerning the applicant. The matter came before Judge Street of 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, based on adverse security assessments, was affected by jurisdictional error. Specifically, the Court was required to consider whether the Minister had failed to afford the applicant procedural fairness in the assessment process, and whether the adverse security assessments themselves were irrational or unreasonable to the point of being legally invalid. The applicant contended that they were not given adequate opportunity to respond to the information contained within the adverse assessments.

Judge Street reasoned that the Minister's decision-making power under the *Migration Act 1958* (Cth) was engaged by the applicant's claim for a protection visa. The Court affirmed that while the Minister is entitled to rely on adverse security assessments, the process by which those assessments are made and considered must comply with the requirements of procedural fairness. In this instance, the Court found that the applicant had been provided with sufficient information regarding the adverse assessments and had been afforded a reasonable opportunity to make submissions in response. The Court concluded that the adverse security assessments were not so irrational or unreasonable as to be incapable of forming the basis of the Minister's decision, and therefore, no jurisdictional error had occurred.

The application for judicial review was dismissed.

Orders