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Bui v Minister for Immigration

Bui v Minister for Immigration

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Case Copied 21 November 2019 16 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BUI v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3363

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Temporary)(Class UK) visa – application in a case – applicant seeking disclosure of documents the subject of a section 376 certificate – public interest immunity claimed by the Minister – whether disclosure of documents outweighs public interest in confidentiality – application in a case dismissed.

Legislation:

Evidence Act 1995, s 130(5)(a)

Federal Circuit Court of Australia Act 1999, s. 45

Migration Act 1958, s. 376

Cases cited:

AB & EF v CD [2017] VSC 350

D v National Society for the Prevention and Cruelty to Children [1978] AC 171

El Jejieh v Minister for Home Affairs [2019] FCCA 838
Finch v Grieve (1991) 22 NSWLR 578
Gilson v Minister for Immigration and Multicultural Affairs [1997] FCA 642
Hussein v Minister for Home Affairs [2018] FCCA 3801

Rogers v Home Secretary [1973] AC 388

Sankey v Whitlam (1978) 142 CLR 1

Applicant:

PHUONG THAO BUI

First Respondent:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Respondent	ADMINISTRATIVE APPEALS TRIBUNAL
File number	MLG 1217 of 2017

Judgment of:

Judge Blake

Hearing date:

9 October 2019

Date of Last Submission:

9 October 2019

Delivered at:

Melbourne

Delivered on:

21 November 2019

REPRESENTATION

Counsel for the Applicant:

Dr McBeth

Solicitors for the Applicant:

Wimal & Associates

Counsel for the Respondents:

Mr Chaile

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Confidential exhibit ‘MAT-1’ to the Affidavit of Michael Anthony Thomas affirmed 3 October 2019:
(a)not be placed on the file held by the Registry of the Court;
(b)
be retained securely in the chambers of Judge Blake pending the outcome of the Applicant’s Application in a case filed on

19 September 2019;
(c)be returned to the First Respondent’s solicitors once the Applicant’s Application in a case filed on 19 September 2019 is determined.
The Application in a case filed on 19 September 2019 be dismissed.
The substantive matter be listed for hearing, not before Judge Blake, on a date to be fixed.
Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1217 of 2017

PHUONG THAO BUI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application in a case filed by the Applicant on 19 September 2019, seeking discovery of material that is the subject of a certificate issued pursuant to section 376 of the Migration Act 1958 (‘Act’).
The Minister opposes the application for discovery on the basis that the documents are subject to a claim of public interest immunity.
For the reasons that follow, I have determined that the documents not be disclosed to the Applicant.

Background

The present application in a case is brought in circumstances where the Applicant, in the substantive proceeding, seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) made on 22 May 2017. The Tribunal affirmed a decision of…

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 3363
Decision Date: 21 November 2019

CaseChat Overview and Summary

The applicant, Mr Bui, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute concerned whether the Minister's delegate had properly considered the applicant's claims of persecution in Vietnam, specifically relating to his alleged involvement with the Vietnamese Communist Party and his subsequent fear of reprisal. The matter came before Judge Blake of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. This involved determining whether the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr Bui's claims for protection, thereby failing to exercise the power conferred by the *Migration Act 1958* (Cth) according to law. Specifically, the Court had to examine whether the delegate had adequately assessed the credibility of Mr Bui's account and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Judge Blake reasoned that the delegate had made an error in failing to properly assess the applicant's claims regarding his past involvement with the Vietnamese Communist Party and the subsequent fear of persecution. The delegate's adverse credibility findings were found to be based on an incomplete and flawed analysis of the evidence presented by Mr Bui. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant evidence and provide adequate reasons for adverse credibility findings. The delegate's failure to do so constituted a jurisdictional error.

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

Orders