BXP16 v Minister for Immigration - [2019] FCCA 1946

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXP16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1946

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Administrative Appeals Tribunal affirms decision of Delegate not to grant – applicant claimed that the Administrative Appeals Tribunal committed jurisdictional error in not giving to the applicant Facebook account information for the purposes of s.424A or s.424AA of the Migration Act 1958 (Cth) and denied procedural fairness by not honouring an alleged undertaking to address it on potential concerns or holding a further hearing – Facebook account information was not “information” for the purposes of s.424A and did not need to be given to the applicant but in any event Facebook account information was given to the Administrative Appeals Tribunal by the applicant under s.424A(3)(b) and hence s.424A was rendered inapplicable and no unequivocal undertaking as alleged was given by the Administrative Appeals Tribunal – no jurisdictional error established – application for judicial review dismissed.

Legislation:

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

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

BTU18 v Minister for Home Affairs [2019] FCA 540

Minister for Immigration & Citizenship v Brar (2012) 201 FCR 240

Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241

NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
SZBEL v Minister for Immigration & Indigenous Affairs (2006) 228 CLR 152

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZLJD v Minister for Immigration & Citizenship [2008] FCA 1094

SZNKO v Minister for Immigration & Citizenship (2010) 184 FCR 505

SZTNL v Minister for Immigration (2015) 231 FCR 204

SZUXO v Minister for Immigration & Border Protection [2016] 162 ALD 62

Zeng v Minister for Immigration & Border Protection [2016] FCA 627

Applicant:

BXP16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1934 of 2016

Judgment of:

Judge Dowdy

Hearing date:

18 July 2018

Delivered at:

Sydney

Delivered on:

18 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr R. Chia of Counsel

Counsel for the First Respondent:

Mr T. Reilly of Counsel

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Amended Application filed in this Court on 13 December 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1934 of 2016

BXP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of Pakistan aged 25 years, having been born on 6 September 1993.
By Amended Application filed in this Court on 13 December 2016 he seeks to quash and have re‑determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 4…

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 1946
Decision Date: 18 July 2019

CaseChat Overview and Summary

The applicant, BXP16, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Delegate's refusal to grant a protection visa. The applicant contended that the AAT had committed jurisdictional error by failing to provide Facebook account information to the applicant for the purposes of sections 424A or 424AA of the *Migration Act 1958* (Cth). Furthermore, the applicant alleged that the AAT denied procedural fairness by not addressing potential concerns regarding this information or holding a further hearing, contrary to an alleged undertaking.

The central legal issues before the Court were whether the AAT committed jurisdictional error by: (1) failing to provide the Facebook account information under sections 424A or 424AA of the *Migration Act*; and (2) denying procedural fairness by not honouring an alleged undertaking to address potential concerns or holding a further hearing.

Dowdy J found that the Facebook account information did not constitute "information" for the purposes of section 424A of the *Migration Act*, and therefore was not required to be given to the applicant under that provision. Moreover, the Court noted that the applicant had themselves provided the Facebook account information to the AAT under section 424A(3)(b) of the *Migration Act*, which rendered section 424A inapplicable. The Court also determined that no unequivocal undertaking, as alleged by the applicant, had been given by the AAT. Consequently, no jurisdictional error was established.

The application for judicial review was dismissed.

Orders