BVE17 v Minister for Immigration - [2018] FCCA 1473

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1473

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China on account of his practise of Falun Gong – applicant not believed – whether the Tribunal failed to consider an integer of the applicant’s claims concerning members of his family in China considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 477

Cases cited:

AMA15 v Minister for Immigration [2015] FCA 1424

SZGIZ v Minister for Immigration [2013] FCAFC 71

SZSHK v Minister for Immigration [2013] FCAFC 125; (2013) 138 ALD 26

Applicant: BVE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1288 of 2017

Judgment of: Judge Driver

Hearing date: 6 June 2018

Delivered at: Sydney

Delivered on: 20 June 2018
REPRESENTATION

Counsel for the Applicant: Ms U Okereke-Fisher

Solicitors for the Respondents: Ms C Hillary of DLA Piper
ORDERS
(1)The application as amended in court on 22 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY
SYG 1288 of 2017

BVE17
Applicant
And

MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
1.The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 January 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The following statement of background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them is derived from the Minister’s outline of submissions filed on 14 May 2018.
2.The applicant is a male citizen of China born on 26 February 1980 who arrived in Australia on 27 February 2009 as the holder of a tourist (subclass 676) visa.[1]
[1] Court Book (CB) 106
3.The applicant lodged a protection (Class XA) visa application on 28 April 2014.[2] This was his second protection visa application and was lodged in conformity with the court rulings in SZGIZ v Minister for Immigration[3] and AMA15 v Minister for Immigration,[4] where it was held that an applicant may apply for a further protection visa under s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act) in circumstances where the initial application was only assessed under s.36(2)(a) of the Migration Act.
[2] CB 29
[3] [2013] FCAFC 71
[4] [2015] FCA 1424
4.The applicant’s claims outlined in his protection visa application are listed at [13]-[18] of the Tribunal’s decision record.[5] In summary, the applicant claimed that:
a)he was reported for practising Falun Gong. As a result he was arrested by police and detained by the Public Security Bureau (PSB) in Kaifeng City for a month;
b)during this time, he was beaten and forced to attend brainwashing classes;
c)due to his arrest he was released from his job, and had to…

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: [2018] FCCA 1473
Decision Date: 20 June 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by BVE17 against the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant sought to challenge a decision made by the Minister to refuse to grant a protection visa. The case was heard 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 protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister, in assessing the applicant's claims for protection, had failed to properly consider or give sufficient weight to certain aspects of the applicant's evidence and submissions, thereby rendering the decision unreasonable or illogical.

Judge Driver found that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and the risk of future persecution. The Court applied the principles of administrative law, including the requirement for decision-makers to undertake a proper, rational, and logical assessment of the evidence before them. The delegate's failure to engage with critical aspects of the applicant's case meant that the decision was vitiated by jurisdictional error.

Consequently, the Court set aside the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders