BTM16 v Minister for Immigration - [2018] FCCA 3392

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTM16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3392

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error in not giving to the applicant “information” for the purposes of s.424A and s.424AA of the Migration Act 1958 (Cth) – no such “information” – otherwise grounds not made out – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 424A, 424AA

Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZTDT v Minister for Immigration and Border Protection [2016] FCA 631

Applicant:

BTM16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1811 of 2016

Judgment of:

Judge Dowdy

Hearing date:

14 November 2017

Date of Last Submission:

Date Reserved

22 November 2017

13 December 2017

Delivered at:

Sydney

Delivered on:

28 November 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms M. Donald

Solicitors for the First Respondent:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 13 July 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1811 of 2016

BTM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Pakistan aged 26 years, having been born on 1 January 1992.
By Application filed in this Court on 13 July 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 20 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 28 November 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
The Applicant arrived in Australia on 29 December 2012 on a Business (Short Stay) (Subclass 456) visa (Business visa) valid until 12 January 2013. The Applicant lodged the Protection visa application on 9 January 2013.

Claims for Protection

The Applicant made the following claims in his Protection visa application:
a)He belongs to the minority Shi'a Hazara sect of Muslims.
b)His father was the area secretary of the Shi'a Muslim religious political organisation the TNFJ (Tehrik-e-Nifaz-e-Fiqh-e-Jafaria) and was killed when a bomber attacked a Shi'a procession held to mark Ashura.
c)His family are landlords of their area, and their main source of income is from real estate business.
d)Many of his family members, including his two brothers, have been killed by Sunni Muslim terrorists affiliated with the Taliban.
e)The radical group Sipah-e-Sahaba demanded five million rupees to build a Sunni School…

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 3392
Decision Date: 28 November 2018

CaseChat Overview and Summary

The applicant, BTM16, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the Minister's assessment of whether BTM16 would be a person to whom Australia has protection obligations under the *Migration Act 1958* (Cth). The matter came before Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had erred in finding that BTM16 would not be a person to whom Australia has protection obligations, specifically in relation to the risk of persecution on the grounds of membership of a particular social group. This involved an assessment of whether the delegate had properly considered the evidence presented by BTM16 regarding their claimed fear of persecution in their country of origin.

Dowdy J's reasoning focused on the principles of administrative law, particularly the requirement for a decision-maker to undertake a proper, rational, and logical assessment of the evidence. The Court examined whether the delegate had adequately considered the specific characteristics of the alleged particular social group to which BTM16 belonged and whether the delegate's adverse credibility findings were supported by the evidence. The judge found that the delegate had failed to properly engage with the evidence concerning the claimed social group and had made findings that were not open on the material before them, thereby committing jurisdictional error.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for redetermination according to law.

Orders