BVL15 v Minister for Immigration - [2016] FCCA 2157

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVL15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2157

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal erred in failing to consider the Refugee criterion where the Delegate had already considered same – whether the Tribunal failed to address the applicant’s religious claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 417

Cases cited:

AMA15 v Minister for Immigration & Border Protection [2015] FCA 1424

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142; [2005] HCA 29
Minister for Immigration & Border Protection v SZSCA (2013) 222 FCR 192; [2013] FCAFC 155
Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45
SZATVv Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71
SZSWB v Minister for Immigration & Border Protection [2014] FCCA 765
SZVCH v Minister for Immigration & Border Protection (2015) 303 FLR 403; [2015] FCCA 2950
VFAC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 367

Applicant:

BVL15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2473 of 2015

Judgment of:

Judge Smith

Hearing date:

16 August 2016

Date of Last Submission:

16 August 2016

Delivered at:

Sydney

Delivered on:

26 August 2016

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones, Parish Patience

Solicitors for the Respondents:

Mr M Weiss, Clayton Utz

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2473 of 2015

BVL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People’s Republic of China who arrived in Australia on 12 August 2001 and first applied for a protection visa on 19 August 2003 after his student visa was cancelled. That application was based upon the applicant’s claim to fear persecution in China for reason of his belief in the tenets of Falun Gong. That application was refused on 2 September 2003 and on 13 January 2004 the Refugee Review Tribunal[1] affirmed that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
After an unsuccessful attempt to obtain Ministerial intervention under s.417 of the Migration Act 1958 (Cth), the applicant made a further application for a protection visa on 19 September 2013. That application was made on the basis of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 to the effect, relevantly, that a further protection visa application…

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 2157
Decision Date: 26 August 2016

CaseChat Overview and Summary

The applicant, BVL15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant BVL15 a visa. The matter was heard in the Federal Court of Australia.

The primary 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, in assessing BVL15's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Smith reasoned that the delegate's assessment had indeed been flawed. The delegate had failed to adequately consider the applicant's submissions regarding their genuine temporary entrant status, a crucial factor in the visa assessment. This failure amounted to a failure to take into account a relevant consideration, which constituted a jurisdictional error. The Court applied the principles established in administrative law concerning the duty of a decision-maker to consider all relevant material placed before them.

Consequently, the Court found that the Minister's decision was vitiated by jurisdictional error and ordered that the decision be set aside. The matter was remitted to the Minister for redetermination according to law.

Orders