BUC15 v Minister for Immigration - [2016] FCCA 1010

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUC15 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1010

Catchwords:
MIGRATION – Review of Former Refugee Review Tribunal – refusal of protection visas – refusal of an extension of time for show cause application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.477

Cases cited:
Applicant A2 of 2002 v Minister for Immigration [2003] FCA 576

Applicant M29 of 2001& Anor v Minister for Immigration [2003] FCA 1266
AZACG v Minister for Immigration& Anor [2013] FCCA 1364

Bandari & Anor v Minister for Immigration & Anor [2015] FCCA 2297

Daniel v Minister for Immigration [2004] FCA 21
Hunter Valley Development Pty Limited v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344
Minister for Immigration v Jia Legeng [2001] 205 CLR 507

MZZBM v Minister for Immigration & Anor [2013] FCCA 321

M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
NADH v Minister for Immigration (2004) 214 ALR 264

Perera v Minister for Immigration (1999) 92 FCR 6

Plaintiff M90/2009 v Minister for Immigration [2009] HCATrans 279
SCAA v Minister for Immigration [2002] FCA 668
SBBS v Minister for Immigration (2002) 194 ALR 749

Singh & Anor v Minister for Immigration & Anor [2015] FCCA 831

SZHVL v Minister for Immigration [2008] FCA 356
SZOAF v Minister for Immigration [2010] FCA 431

SZTES v Minister for Immigration [2015] FCA 719
Vu v Minister for Immigration [2008] FCAFC 59

WACO v Minister for Immigration (2003) 131 FCR 511
WALN v Minister for Immigration [2006] FCAFC 131

First Applicant:

BUC15

Second Applicant:

BUD15

Third Applicant:

BUE15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2434 of 2015

Judgment of:

Judge Driver

Hearing date:

29 April 2016

Delivered at:

Sydney

Delivered on:

29 April 2016

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the Respondents:

Mr M Glavac of Clayton Utz

ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2434 of 2015

BUC15

First Applicant

BUD15

Second Applicant

BUE15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application seeking review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal decision was made on 12 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants, who are a husband, his wife and their daughter born in Australia.
Background…

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: [2016] FCCA 1010
Decision Date: 29 April 2016

CaseChat Overview and Summary

The applicant, BUC15, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and applied the relevant criteria for the grant of a protection visa, specifically in relation to the applicant's claims of persecution. The Court was required to determine if the delegate's assessment of the evidence and the application of the *Migration Act 1958* (Cth) and associated regulations were legally sound.

Judge Driver found that the delegate had failed to adequately assess the applicant's claims regarding the risk of harm should they be returned to their country of origin. The delegate's reasoning was found to be cursory and did not engage with the specific details of the applicant's evidence in a manner that demonstrated a proper understanding of the potential consequences. The Court reiterated the principle that a decision-maker must genuinely consider all relevant evidence and provide reasons that are sufficiently detailed to demonstrate that consideration.

The Court quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders