BWU16 v Minister for Immigration - [2018] FCCA 3051

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWU16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3051

Catchwords:
MIGRATION – Application for a remedy under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal made any jurisdictional error by declining offer made in the course of a hearing before it to contact witnesses located in applicant’s country of nationality – whether the reasons the Tribunal gave for declining offer to telephone witnesses inconsistent with Tribunal’s ultimate finding that applicant did not face a real chance of serious harm if returned to his country of nationality – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.353(1), 361, 425, 425A, 426, 427(1), 476, 429A(a)

Cases cited:

AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103
CZBH v Minister for Immigration and Border Protection [2014] FCA 1023
Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
SZVMG v Minister for Immigration & Anor [2016] FCCA 631

Applicant:

BWU16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1927 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

22 September 2017

Date of Last Submission:

22 September 2017

Delivered at:

Sydney

Delivered on:

26 October 2018

REPRESENTATION

Solicitors for the Applicant:

Mr S Hodges of Hodges Legal

Counsel for the First Respondent:

Mr D Hughes

Solicitors for the First Respondent:

Mills Oakley Lawyers

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1927 of 2016

BWU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of the first respondent (Minister) not to grant the applicant a protection (class XA) visa (Protection visa).
The principal questions that arise are whether the Tribunal made a jurisdictional error by declining the applicant’s offer made during the hearing before the Tribunal that it contact by telephone two potential witnesses, and whether the reasons the Tribunal gave for declining that request manifest irrationality or unreasonableness in the manner in which the Tribunal assessed the risk of the applicant’s being harmed if he were to be returned to Sri Lanka.
To be in a position to consider these issues, it will be necessary to set out the applicant’s claims for protection, those parts of the hearing before the Tribunal where the applicant…

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 3051
Decision Date: 26 October 2018

CaseChat Overview and Summary

The applicant, BWU16, sought judicial review under s 476 of the *Migration Act 1958* (Cth) of a decision by the Administrative Appeals Tribunal. The Tribunal had affirmed a delegate's decision to refuse the applicant a protection visa. The central dispute concerned whether the Tribunal had committed a jurisdictional error by declining an offer made during a hearing to contact witnesses located in the applicant's country of nationality.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal's refusal to contact the proposed witnesses constituted a jurisdictional error. This involved examining whether the reasons provided by the Tribunal for declining this offer were inconsistent with its ultimate finding that the applicant did not face a real chance of serious harm if returned to his country of nationality.

Judge Manousaridis found no jurisdictional error. The Tribunal's reasons for declining the offer to contact witnesses were found to be coherent and did not undermine its ultimate conclusion. The court determined that the Tribunal had adequately considered the available evidence and that its decision to not contact the witnesses did not lead to an illogical or irrational outcome inconsistent with its findings regarding the applicant's risk of harm. The application was therefore dismissed.

Orders