BTQ17 v Minister for Immigration - [2019] FCCA 2414

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTQ17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2414

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H(1), 36(2A), 424A, 425.

Cases cited:

ETA067 v The Republic of Nauru [2018] HCA 46
Minister for Immigration and Border Protection v Ly [2018] FCAFC 123
Minister for Immigration & Citizenship v SZMOK (2009) 247 FCR 404
SZRSN v Minister for Immigration and Anor [2013] FMCA 78
SZRSN v Minister for Immigration & Citizenship [2013] FCA 751
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624

Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327

First Applicant:

BTQ17

Second Applicant:

BTR17

Third Applicant:

BTS17

Fourth Applicant:

BTT17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 827 of 2017

Judgment of:

Judge Mercuri

Hearing date:

1 March 2019

Date of Last Submission:

1 March 2019

Delivered at:

Dandenong

Delivered on:

30 August 2019

REPRESENTATION

Counsel for the applicants:

Ms Dodd

Solicitors for the applicants:

Aum Lawyers Pty Ltd

Counsel for the respondents:

Mr Maloney

Solicitors for the respondents:

Sparke Helmore

ORDERS

The applicant’s application filed 24 April 2017 as amended on 2 November 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 827 OF 2017

BTQ17

First Applicant

BTR17

Second Applicant

BTS17

Third Applicant

BTT17

Fourth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (“the tribunal”) on 31 March 2017, which affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Control (“the Minister”) made on 2 April 2015 to refuse the applicants’ application for a protection (class XA) visa (“the visa”).

Background

The applicants are citizens of Sri Lanka. The first applicant is married to the second applicant, and the third and fourth applicants are their sons. Prior to arriving in Australia in September 2013, the first applicant lived with her parents and the third applicant in Sri Lanka. The second applicant spent much of his time working abroad and providing financial support to his family. The second applicant lived and worked full-time in France and Italy, visiting his family in Sri Lanka some three times over the course of the ten years prior to the applicants’ arrival in Australia.
The first applicant’s claims are set out in detail below.
On 3 September 2013, the first, second and third applicants arrived in Australia on a visitor visa. On 16 September 2013, the first applicant applied for a protection visa which included the second and third applicants. The fourth applicant was born in Australia on 12…

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: [2019] FCCA 2414
Decision Date: 30 August 2019

CaseChat Overview and Summary

BTQ17 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was a citizen of Sri Lanka, claimed to fear persecution in Sri Lanka due to their involvement with the Liberation Tigers of Tamil Eelam (LTTE). The Minister had refused the protection visa application on the grounds that the applicant was excluded from the definition of a refugee under section 36(2)(a) of the *Migration Act 1958* (Cth) because they had been found to have committed a serious non-political crime.

The primary legal issue before the Federal Court was whether the applicant had committed a serious non-political crime within the meaning of section 36(2)(a) of the *Migration Act*. This required the Court to determine whether the applicant's alleged actions, which involved participation in activities with the LTTE, constituted a "crime" and, if so, whether it was "serious" and "non-political." The Court also considered whether the Minister's delegate had properly applied the relevant legal tests and considered all the evidence before making the decision.

In its reasoning, the Court analysed the meaning of "serious non-political crime" in the context of international refugee law and Australian domestic law. The Court referred to established jurisprudence that a crime is "serious" if it involves a grave infringement of a fundamental legal right, such as the right to life or liberty, and that "non-political" means the crime is not primarily motivated by political objectives, even if it has political consequences. The Court found that the applicant's alleged involvement in acts of violence and terrorism, which were not directed at achieving a political objective in the sense contemplated by the exclusion clause, constituted serious non-political crimes. Consequently, the Court held that the Minister's delegate had not erred in law in refusing the protection visa.

The application for judicial review was dismissed.

Orders