FEDERAL COURT OF AUSTRALIA
BTT16 v Minister for Home Affairs [2019] FCA 251
Appeal from: BTT16 & Ors v Minister for Immigration &Anor
[2018] FCCA 1125File number: WAD 131 of 2018 Judge: STEWARD J Date of judgment: 28 February 2019 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether primary judge erred in dismissing an application for judicial review of a decision of the Immigration Assessment Authority affirming refusal of temporary protection visa applications – where oral application for adjournment made following delivery of the primary judge’s ex tempore judgment – whether primary judge denied the appellants procedural fairness by declining to adjourn hearing of the originating application – whether characterisation by the IAA of extortion suffered by the appellants as not amounting to “serious harm” was illogical – whether IAA made findings of fact that were either not supported by any evidence or which overlooked material evidence Legislation: Migration Act1958 (Cth) ss 5J, 36
Federal Circuit Court Rules 2001 (Cth) r 16.05
Cases cited: AIC15 v Minister for Immigration and Border Protection [2018] FCA 774
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
BGV15 v Minister for Home Affairs [2018] FCA 1753
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
House v The King (1936) 55 CLR 499
Jansen v Salisbury Wrought Iron Works Pty Ltd [2007] SASC 73
Keating v Keating [2017] FamCAFC 86
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452
SZWCO v Minister for Immigration and Border Protection [2016] FCA 51
Date of hearing: 12 December 2018 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 41 Counsel for the Appellants: Mr H Glenister on a pro bono basis Solicitor for the Appellants: Cathal Smith Legal Counsel for the Respondents: Mr P Hannan Solicitor for the Respondents: Sparke Helmore ORDERS
WAD 131 of 2018 BETWEEN: BTT16
First Appellant
BTU16
Second Appellant
BTV16
Third Appellant
AND: MINISTER FOR HOME AFFIAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
28 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court of Australia made on 20 March 2018 are set aside.
3.In lieu thereof, the following orders are substituted:
(a)A writ of certiorari, directed to the second respondent, quashing the decision of the second respondent made on 1 July 2016.
(b)A writ of mandamus, directed to the second respondent, requiring it to determine according to law the application for review of the decision of the delegate of the first respondent made on 24 May 2016.
(c)The first respondent is to pay the applicants’ costs of and incidental to the application for…
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- Case
- [2019] FCA 251
- Decision Date
CaseChat Overview and Summary
The central legal issues in the appeal were whether the primary judge erred in declining to adjourn the hearing of the originating application after delivering an ex tempore judgment, and whether the IAA had correctly assessed the appellants' claims of "serious harm." The appellants contended that the IAA's characterisation of the extortion they suffered as not amounting to "serious harm" was illogical and that the IAA had made findings of fact either unsupported by evidence or which overlooked material evidence. Additionally, the appellants argued that the primary judge had denied them procedural fairness by not granting an adjournment after the delivery of the ex tempore judgment.
The Full Court found that the primary judge had indeed erred in declining to adjourn the hearing after delivering the ex tempore judgment, which deprived the appellants of procedural fairness. The Court also found that the IAA had made errors in its assessment of the appellants' claims, particularly regarding the characterisation of the extortion as not amounting to "serious harm." The Court held that the IAA's findings were illogical and had overlooked material evidence. Consequently, the appeal was allowed, the orders of the Federal Circuit Court were set aside, and new orders were substituted. The IAA was directed to reconsider the appellants' application for review according to law, and the Minister was ordered to pay the appellants' costs of the judicial review application and the appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders of the Federal Circuit Court of Australia made on 20 March 2018 are set aside.
3. In lieu thereof, the following orders are substituted:
(a) A writ of certiorari, directed to the second respondent, quashing the decision of the second respondent made on 1 July 2016.
(b) A writ of mandamus, directed to the second respondent, requiring it to determine according to law the application for review of the decision of the delegate of the first respondent made on 24 May 2016.
(c) The first respondent is to pay the applicants’ costs of and incidental to the application for judicial review filed on 14 July 2016.
4. The first respondent is to pay the appellants’ costs of and incidental to the appeal as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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