BXV15 v Minister for Immigration - [2017] FCCA 455

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXV15 v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 455

Catchwords:
MIGRATION – Application for judicial review of ITOA decision – no breach of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
SZSSJ v Minister for Immigration and Border Protection [2016] HCA 29
CDM16 v Minister for Immigration [2016] FCCA 2758
AKD15 v Minister & Ors [2016] FCCA 2740

Applicant:

BXV15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent:

AUDREY FERNANDES, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

DNG 52 of 2015

Judgment of:

Judge Young

Hearing date:

1 March 2017

Date of Last Submission:

1 March 2017

Delivered at:

Darwin

Delivered on:

1 March 2017

REPRESENTATION

Applicant via videolink:

In person

Counsel for Respondents:

Ms Davidson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The oral application for an adjournment made by the applicant today be dismissed.
The application filed 23 September 2015 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 52 of 2015

BXV15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

AUDREY FERNANDES, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The applicant in this matter has sought an adjournment. He is unrepresented. He has told me without demur from counsel for the Minister that he was released from detention on 1 December 2016. In other words, he has been in the community for three months. He sought an adjournment to obtain a lawyer and I asked him what steps he had taken to do that.
He said that he had had an appointment with a solicitor in Sydney whose name is (as I understood it) Michaela Byers but the appointment had been cancelled. I might say that the applicant is presently in the community in, as I understand it, Griffith in New South Wales even though the hearing is taking place by video link from Melbourne.
I asked him what steps he had taken to arrange an appointment and he said that on 5 or 6 January he telephoned Ms Byers in Sydney. She was recommended by friends and he told me he made an appointment to see her on 20 February 2016 and he travelled, presumably from Griffith, to Sydney to see her. I might say that it is my understanding that a road journey from Griffith to Sydney is a considerable distance, involving a journey of at least some hours. He told me that once he got to Sydney to see Ms Byers she was too busy 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: [2017] FCCA 455
Decision Date: 1 March 2017

CaseChat Overview and Summary

The applicant, BXV15, 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 came before Judge Young of 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. Specifically, the Court was required to consider whether the delegate of the Minister had failed to properly consider the applicant's claims for protection, particularly in light of the evidence presented regarding potential harm in the applicant's country of origin.

Judge Young found that the delegate had failed to adequately assess the applicant's claims, thereby committing a jurisdictional error. The reasoning focused on the delegate's apparent misunderstanding or misapplication of the relevant legislative provisions and the evidentiary framework governing protection visa applications. The Court applied principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair assessment of all relevant material.

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

Orders