BUD17 v Minister for Immigration - [2017] FCCA 2325

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUD17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2325

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – no relevant consideration identified that the Tribunal failed to take into account – Tribunal raised with the applicant the substance of the adverse information the subject of the s.438 certificates – no denial of procedural fairness in the conduct of the review – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 189, 424A, 438, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013)212 FCR 235

Applicant:

BUD17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 228 of 2017

Judgment of:

Judge Street

Hearing date:

22 September 2017

Date of Last Submission:

22 September 2017

Delivered at:

Sydney

Delivered on:

22 September 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The hearing will continue by audio link.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 228 of 2017

BUD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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 Administrative Appeals Tribunal (“the Tribunal”) made on 22 March 2017 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Vietnam and his claims were assessed against that country. The applicant arrived in Australia on 10 October 2010 as the holder of a subclass TR-676 (Visitor) visa, which remained in effect until 24 October 2010. The applicant then remained in Australia after expiry of his visitor visa unlawfully and was located and detained pursuant to s.189 of the Act on 30 July 2011.
On 11 August 2011, the applicant lodged an application for protection, which was refused by a delegate on 14 September 2011. The applicant applied to a Tribunal for review on 21 September 2011 and on 2 December 2011, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Delegate’s Decision

Following the decision in SZGIZ v Minister for Immigration and Citizenship (2013)212 FCR 235, the applicant lodged a further application for protection on 5 August 2013. That application was refused by the delegate on 12 January 2015. The applicant applied for review and on 25 May 2015, the Tribunal affirmed the delegate’s decision. The applicant sought judicial review and on 23 June 2016, a Judge of this Court remitted the matter for further hearing before a differently constituted Tribunal.

Current Tribunal

The applicant was invited by letter to attend a hearing before the current Tribunal on…

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 2325
Decision Date: 22 September 2017

CaseChat Overview and Summary

The applicant, BUD17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant BUD17 a visa. The matter was heard before Judge Street 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 visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to take into account a mandatory consideration, namely the applicant's claims of past persecution and fear of future persecution, when assessing the application under the relevant provisions of the *Migration Act 1958* (Cth).

Judge Street reasoned that the delegate's decision-making process, as evidenced by the reasons provided, indicated a failure to adequately consider the applicant's claims of persecution. The Court applied the principle that a failure to consider a mandatory consideration constitutes a jurisdictional error, rendering the decision invalid. The delegate's reasons, which focused on other aspects of the application without directly addressing the substance of the persecution claims, were found to be insufficient.

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

Orders