BWP15 v Minister for Immigration - [2016] FCCA 1108

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWP15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1108

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.91R, 424A

Applicant:

BWP15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2529 of 2015

Judgment of:

Judge Driver

Hearing date:

10 May 2016

Delivered at:

Sydney

Delivered on:

10 May 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms N Johnson of Mills Oakley

INTERLOCUTORY ORDERS

The name of the second respondent is amended to the “Administrative Appeals Tribunal”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2529 of 2015

BWP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 2 September 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims based upon an alleged forced abortion. Background facts relating to the applicant’s claims and the decisions of the delegate and the Tribunal on them are set out in the Minister’s outline of submissions filed on 28 April 2016.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 3 April 2014[1]. She lodged a protection visa application on 6 May 2014[2] and provided a three-page statement of written claims[3]. The applicant claimed that she was forced to have an abortion in January 2014 under the one child policy after falling pregnant for the second time.
[1] Court Book (CB) 14, 65
[2] CB 1-26
[3] CB 27-29

The delegate

By a letter dated 22 January 2015, the applicant was invited to attend an interview before a delegate of the Minister on 11 February 2015[4]. The applicant attended…

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 1108
Decision Date: 10 May 2016

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Driver considered the application of BWP15 for judicial review of a decision made by the Minister for Immigration. The applicant, BWP15, sought to challenge the lawfulness of the Minister's decision to refuse to grant a protection visa. The core of the dispute concerned the assessment of BWP15's claims for protection and the application of relevant provisions of the *Migration Act 1958* (Cth) and associated regulations.

The primary legal issue before the Court was whether the Minister's delegate had properly considered and assessed BWP15's claims for protection, particularly in light of the evidence presented and the criteria stipulated by the *Migration Regulations 1994* (Cth). Specifically, the Court was required to determine if the delegate's findings regarding the applicant's fear of persecution and the nexus between that fear and a non-refoulement obligation were reasonable and supported by the evidence. This involved an examination of the delegate's evaluation of the applicant's credibility and the objective country information considered.

Judge Driver's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a comprehensive and logical assessment of all relevant evidence. The Court applied the established legal principles governing the review of protection visa decisions, emphasising that the delegate must not only consider the applicant's subjective fear but also assess whether that fear is well-founded in accordance with the Convention relating to the Status of Refugees. The Court found that the delegate's decision contained errors of law, specifically in the manner in which certain aspects of the applicant's evidence were disregarded and in the application of the relevant legal tests for establishing a well-founded fear of persecution.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders