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BUP17 v Minister for Immigration

BUP17 v Minister for Immigration

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Case Copied 13 November 2019 70 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BUP17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3193

Catchwords:
MIGRATION – Protection visa application – judicial review of Pt 7AA fast track decision by Immigration Assessment Authority – procedural fairness not lens through which decision to be considered – legal unreasonableness – where applicant claims sexual abuse by several Sri Lankan Army personnel whilst detained over period of three hours – where applicant had not made such claims in original declaration or in his arrival interview – where delegate acknowledged that applicant’s claim was consistent with country information – where applicant distressed when recounting claims to delegate – where delegate accepted applicant’s claim of abuse and deliberately abstained from further investigating claims – where delegate accepts applicant’s claims but found applicant could relocate – decision referred for fast track review – where Authority then finds that applicant fabricated claim – whether decision affected by legal unreasonableness – applicable principles – where Authority not obliged to give reasons for procedural decisions – whether inference of failure to consider exercise of discretionary powers to get information or obtain comment from applicant or decision not to do so open – whether Authority affirmed decision without considering exercise of powers to obtain comment or new information, or failed to consider exercising such power – evaluation of quality of process and outcome of decision – where decision is legally unreasonable – application allowed.

EVIDENCE – Protection visa application – where claim of sexual abuse accepted by delegate – conduct of fast track review under Pt 7AA of Migration Act 1958 (Cth) – where Authority is generally required to conduct fast track review on the papers – where Authority does not get information or obtain comment from applicant – where Authority then finds that applicant fabricated claim – finding of fabrication – where Authority not bound by rules of evidence – something more than mere rejection of evidence ordinarily required before finding is made that witness deliberately gave false evidence – exercise of caution ordinarily required before finding witness fabricated evidence.

Legislation:

Evidence Act 1995 (Cth), s.140
Migration Act 1958 (Cth), ss.5J, 46A, 425, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DF, 473FA, 473FB, 473GB

Cases cited:

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
AXE16 v Minister for Immigration and Border Protection [2018] FCA 646
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
BDC17 v Minister for Immigration and Border Protection [2018] FCA 1899
BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114
BVD17 v Minister for Immigration and Border Protection, [2019] HCA 34
BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Craig v South Australia (1995) 184 CLR 163
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
Devries v Australian…

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 3193
Decision Date: 13 November 2019

CaseChat Overview and Summary

The applicant, BUP17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) under Part 7AA of the *Migration Act 1958* (Cth) concerning his application for a protection visa. The dispute arose after the IAA, in its fast-track review, found that the applicant had fabricated his claim of sexual abuse by Sri Lankan Army personnel, despite the initial delegate having accepted the claim as consistent with country information and having deliberately abstained from further investigation due to the applicant's distress.

The central legal issues before the court were whether the IAA's decision was affected by legal unreasonableness and whether the IAA had failed to consider the exercise of its discretionary powers to obtain further information or comment from the applicant before making its finding of fabrication. The court was required to evaluate the quality of the process and the outcome of the IAA's decision, particularly in light of the IAA's general obligation to conduct fast-track reviews on the papers without obtaining further information or comment.

Justice Kelly found that the IAA's finding of fabrication was legally unreasonable. The court reasoned that while the IAA is not bound by the rules of evidence, a finding that a witness deliberately gave false evidence generally requires something more than mere rejection of the evidence and necessitates the exercise of caution. The court concluded that the IAA had affirmed the decision without adequately considering, or having failed to consider, the exercise of its powers to obtain comment or new information from the applicant, leading to a legally unreasonable outcome.

The application for judicial review was allowed.

Orders