BYN16 v Minister for Immigration - [2018] FCCA 2928

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYN16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2928

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal assessed applicants’ claims – whether Tribunal considered documentary evidence – whether Tribunal acted unreasonably in not accepting applicants’ claims of political involvement – whether first applicant impaired in participating in hearing before Tribunal – whether Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) by not giving particulars of inconsistent statements made by first applicant – whether Tribunal erred by not taking evidence from persons who had composed letters applicants produced to the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R(3), 424A, 425, 476.

Cases cited:

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

First Applicant:

BYN16

Second Applicant:

BZC16

Third Applicant:

BZD16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1979 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

21 September 2017

Date of Last Submission:

21 September 2017

Delivered at:

Sydney

Delivered on:

23 October 2018

REPRESENTATION

Applicants in person assisted by an interpreter

Counsel for the First Respondent:

Mr J Kay-Hoyle

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1979 of 2016

BYN16

First Applicant

BZC16

Second Applicant

BZD16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants, who are citizens of Bangladesh, apply 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 applicants a protection (class XA) visa (Protection visa).
The applicants first applied for a Protection visa on 1 March 2010 (First PV application). A delegate of the Minister refused that application on 25 October 2011, and, on 18 February 2011, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. The applicants again applied for a Protection visa on 4 October 2012 (Second PV application). That application came to be treated as a valid application for a Protection visa after the Full…

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 2928
Decision Date: 23 October 2018

CaseChat Overview and Summary

The applicants sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the Minister's decision not to grant them a protection visa. The applicants contended that the Tribunal failed to properly assess their claims, consider the documentary evidence before it, and acted unreasonably in not accepting their assertions of political involvement. Further grounds for review included the first applicant's alleged impairment in participating in the Tribunal hearing and the Tribunal's failure to comply with section 424A of the *Migration Act 1958* (Cth) by not providing particulars of inconsistent statements made by the first applicant. The applicants also argued the Tribunal erred by not taking evidence from the authors of letters they had submitted.

The central legal issues before the Court were whether the Tribunal had adequately considered the applicants' claims and the evidence presented, including documentary evidence and assertions of political involvement. The Court was also required to determine if the Tribunal had acted unreasonably in its assessment of these claims. Furthermore, the Court had to consider whether the first applicant's ability to participate in the hearing was impaired and whether the Tribunal had breached its procedural obligations under section 424A of the *Migration Act 1958* (Cth) by failing to provide particulars of inconsistent statements. Finally, the Court had to assess whether the Tribunal erred in law by not calling the authors of the submitted letters to give evidence.

His Honour Judge Manousaridis found that the Tribunal had adequately considered the applicants' claims and the evidence, including the documentary evidence and the assertions of political involvement. The Court determined that the Tribunal's findings were open to it on the evidence and that it had not acted unreasonably. The Court also found no impairment in the first applicant's participation in the hearing and that the Tribunal had complied with its obligations under section 424A of the *Migration Act 1958* (Cth). Regarding the letters, the Court held that the Tribunal was not obliged to call the authors of the letters as witnesses. Consequently, the application for judicial review was dismissed.

Orders