BVR16 v Minister for Immigration - [2019] FCCA 1531

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVR16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1531

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa to the applicant – claim that the Administrative Appeals Tribunal committed jurisdictional error – no such jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA

Cases cited:

ABX15 v Minister for Immigration and Border Protection [2016] FCA 855

AWA15 v Minister for Immigration [2018] FCA 604

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
SZFWB v Minister for Immigration and Citizenship [2007] FCA 167
SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243
VHAJ v Minister for Immigration (2003) 131 FCR 80

Applicant:

BVR16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1884 of 2016

Judgment of:

Judge Dowdy

Hearing date:

9 May 2019

Delivered at:

Sydney

Delivered on:

9 May 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Mr L. Leerdam

Solicitors for the First Respondent:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 19 July 2016 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $6,000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 26 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1884 of 2016

BVR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

The Applicant is a male citizen of China aged 60 years, having been born on 2 July 1958.
By Application filed in this Court on 19 July 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 21 June 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 9 January 2015 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background and Claims for Protection

On 18 January 2014 the Applicant arrived in Australia on a three month Visitor (Class FA) (Subclass 600) visa and he applied for the Protection Visa on 17 April 2014.
The Applicant’s claims for protection were as set out in answer to questions 36 to 42 of his Protection visa application form and his Written Statement dated 2 May 2014 and were two-fold, namely:
a) he had started to know about Christ in 2007. There is no religious freedom in China and he was persecuted for…

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 1531
Decision Date: 9 May 2019

CaseChat Overview and Summary

The applicant, BVR16, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Delegate of the Minister for Immigration's refusal to grant a Protection visa. The matter came before Judge Dowdy in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the AAT had committed a jurisdictional error in its review of the Delegate's decision. The applicant contended that such an error had occurred, leading to the adverse outcome regarding their Protection visa application.

Judge Dowdy considered the applicant's submissions and the record of the AAT's proceedings. The Court found that the AAT had properly exercised its jurisdiction and had not made any jurisdictional error in its assessment of the applicant's claim for a Protection visa. The reasoning applied by the Court focused on whether the AAT had acted within the bounds of its statutory powers and had afforded procedural fairness.

Consequently, the application for judicial review was dismissed.

Orders