BXY16 v Minister for Immigration

[2018] FCCA 1896

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXY16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1896

Catchwords:
MIGRATION – Protection visa – application for review of decision by the Administrative Appeals Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 424A

Applicant: BXY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1566 of 2016

Judgment of: Judge Kirton

Hearing date: 16 May 2018

Date of Last Submission: 16 May 2018

Delivered at: Melbourne

Delivered on: 16 May 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicant pay the First Respondent’s costs in the sum of $5,500.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT MELBOURNE

MLG 1566 of 2016

BXY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This application comes before the Court by way of an application which was filed on 22 July 2016 with an accompanying affidavit seeking to challenge the decision of the Administrative Appeals Tribunal that was made on 30 June 2016 refusing a protection visa to the applicant.  The grounds of the application are set out extremely sparsely.  There are only two grounds specified in the application.

2. The first ground is that:

   The decision of the Tribunal:

   (a) is affected by error of law; and

   (b) denied the applicant procedural fairness.

   The second ground is:

   I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

   The grounds raised by the applicant lack the necessary particulars to make them meaningful, and I accept the first respondent’s submission that they cannot succeed for that reason alone.

3. I accept the first respondent’s submission that in relation to ground 1(a), being that the Tribunal decision was affected by error of law, that the correct framework of analysis in assessing whether the applicant met the refugee and complementary protection criteria and making findings were open to it on the evidence before it.

4. In respect to ground 1(b), that the Tribunal denied the applicant procedural fairness, I have read the first respondent’s written submissions and further submissions this morning. It is submitted that the Tribunal complied with its procedural fairness obligations set out in pt.7, div.4 of the Migration Act 1958 (Cth) (“the Act”) and was in compliance with s.425 of the Act, in that it invited the applicant to attend a hearing on 19 April 2016 to give evidence and present arguments. He attended with his representative and an interpreter. The applicant was on notice from the delegate’s decision that the credibility of his claims and evidence was determinative on the review.

5. I accept the first respondent’s submission that no breach of s.425 has occurred nor did any obligation arise under s.424A of the Act. The information the Tribunal relied on in reaching its decision was information the applicant provided in writing to the department and to the Tribunal, the applicant’s oral evidence to the Tribunal and country information. All of which fell within exceptions to information in ss. 424A(3)(ba), 424A(3)(b), 424A(3)(a) respectively. I accept that no breach of s.424A has occurred and ground 1(b) should be dismissed.

6. Ground 2 in the application is that “I have made an application for assistance through Victorian Legal Aid and am waiting for a decision”. It is submitted on behalf of the first respondent that this statement regarding the applicant’s application is not a proper ground for review.  I accept that submission too; accordingly, I propose to make an order to dismiss the application and will make an order for costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Associate: 

Date:  20 July 2017