BWC16 v Minister for Immigration - [2018] FCCA 890

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWC16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 890

Catchwords:
MIGRATION – Judicial review – decision of Immigration Assessment Authority – refusal of a Protection Visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 75, 473CA, 473DA(1), 473DB, 473DC(1), 473DD, 473GA, 473GB, 476(2), pt.7AA

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163; (1995) 39 ALD 193; (1995) 131 ALR 595; (1995) 69 ALJR 873; (1995) 82 A Crim R 359; [1995] HCA 58

Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; (2010) 113 ALD 1; (2010) 262 ALR 569; (2010) 84 ALJR 154; (2010) 190 IR 437; [2010] HCA 1

Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577; (2010) 119 ALD 90; (2010) 274 ALR 487; [2010] FCAFC 159

Applicant:

BWC16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 319 of 2016

Judgment of:

Judge Kendall

Hearing date:

21 March 2018

Date of Last Submission:

21 March 2018

Delivered at:

Perth

Delivered on:

21 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr M. Crowley

Solicitors for the Applicant:

AUM Legal

Counsel for the First Respondent:

Ms S. Oliver

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The applicant’s originating application filed 20 July 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

No. PEG 319 of 2016

BWC16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

By application filed in this Court on 20 July 2016, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”), dated 1 July 2016.
The IAA affirmed a decision of the delegate of the Minister for Immigration and Border Protection made on 5 May 2016 to refuse the applicant’s application for a Safe Haven Enterprise visa, referred to as a “SHEV”, made on 11 September 2015.
The SHEV application was made on the basis that the applicant feared harm from Sri Lankan authorities due to his Tamil ethnicity and, in particular, his alleged political activities as a member of the Tamil United Liberation Front (the “TULF”).
The delegate refused the SHEV visa. Relevantly, the delegate did not accept that the applicant had campaigned on behalf of the TULF or that he was a member of the TULF. In addition, the delegate concluded that, as the security situation in Sri Lanka’s north had improved since the end of the military conflict, the applicant did not have a well-founded fear of returning to Sri Lanka on the basis of his Tamil ethnicity. The delegate found that the applicant was not a refugee as defined by s.5H(1) of the Migration Act 1958 (Cth), (the “Act”), and was not a person in respect of whom Australia had protection obligations pursuant 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 890
Decision Date: 21 March 2018

CaseChat Overview and Summary

The applicant, BWC16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter 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. This required the Court to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to take into account relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Kendall found that the delegate had failed to properly consider the applicant's claims regarding past persecution and the risk of future persecution in their country of origin. Specifically, the delegate's assessment of the evidence presented by the applicant was found to be superficial and did not engage with the substance of the claims made. The Court reiterated the principle that a failure to properly consider all relevant evidence constitutes a jurisdictional error. Consequently, the Minister's decision was set aside.

The Court ordered that the decision of the Minister be quashed and remitted to the Minister for redetermination according to law.

Orders