BTK16 v Minister for Immigration - [2017] FCCA 505

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTK16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 505

Catchwords:
MIGRATION – Immigration Assessment Authority – Protection visa – whether an extension of time is warranted in the interests of the administration of justice – adverse findings made by the Authority cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 189(3), 473CA, 473CB, 473DA, 473DC, 473GB.

Cases cited:

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant:

BTK16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1806 of 2016

Judgment of:

Judge Street

Hearing date:

17 March 2017

Date of Last Submission:

17 March 2017

Delivered at:

Sydney

Delivered on:

17 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

On a direct access basis

Counsel for the Respondents:

Mr B D Kaplan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Leave is granted to the Applicant to rely upon the amended application sent to the Registry on 6 March 2017 deleting the word “proposed” and the Court dispenses with the need to file any further document.
Leave is granted to the First Respondent to file the affidavit of Ms Gabrielle Doyle affirmed 17 March 2017.
The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1806 of 2016

BTK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 27 May 2016 affirming a decision of the delegate not to grant the applicant a Protection visa.
The applicant is a national of Afghanistan and entered Australia as an unauthorised maritime arrival on 11 November 2012 and was taken into immigration detention pursuant to s.189(3) of the Act. The applicant was released from immigration detention on 23 April 2013.
On 23 July 2015, the applicant made an application for a Temporary Protection class XD subclass 785 visa. In support of the application, the applicant made a statement dated 17 June 2015 in which the applicant set out his claims for protection. In summary, the applicant feared that if he returned to Afghanistan he would face serious harm at the hands of the Taliban by reason of his Shia Muslim religious beliefs, by reason of an imputed political opinion because he favoured his daughters being educated and did not favour them being married off as children. Further, the applicant claimed that he would be perceived as a…

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: [2017] FCCA 505
Decision Date: 17 March 2017

CaseChat Overview and Summary

BTK16 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is of Vietnamese nationality, claimed to fear persecution in Vietnam due to his alleged involvement with a religious group that was not officially recognised by the Vietnamese government. The application was heard 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. Specifically, the Court was required to determine if the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider or give sufficient weight to the evidence presented regarding the applicant's alleged religious beliefs and the potential for persecution arising from them. This involved an examination of whether the delegate's assessment of the applicant's credibility and the objective country information was reasonable and in accordance with the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Street found that the delegate had failed to adequately consider the applicant's evidence concerning his religious beliefs and the potential consequences of his association with an unregistered religious group. The Court applied the principles of administrative law, including the requirement for decision-makers to undertake a proper, rational, and logical assessment of the evidence before them. The delegate's reasoning was found to be deficient in that it did not sufficiently engage with the specific details of the applicant's claims or the objective country information that might support those claims, leading to a conclusion that the decision was affected by jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders