BZACX v Minister for Immigration - [2013] FCCA 647

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZACX v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 647

Catchwords:
MIGRATION – Bias alleged because reviewer on contract – no evidence referred to – no denial of procedural fairness.

Legislation:
Migration Act 1958 (Cth), ss.36, 91R, 91S, 91T, 91U, 476

Commonwealth of Australia Constitution Act, s.75

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant:

BZACX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

BRG 830 of 2012

Judgment of:

Judge Coates

Hearing date:

10 December 2012

Date of Last Submission:

10 December 2012

Delivered at:

Brisbane

Delivered on:

28 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr J Barataraj

Solicitors for the Applicant:

Not applicable

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the Application filed on 17 September 2012 and Amended Application filed 8 November 2012 be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 830 of 2012

BZACX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.476 of the Migration Act1958 (the Act) for:
a)An order that the decision of the Tribunal or Minister be quashed;
b)A writ of mandamus directed to the Tribunal or Minister requiring them to determine the applicant’s Application according to law;
c)A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law by reason of the grounds of this Application;
d)An injunction restraining the Minister, by himself or his department, officers, delegates or agents, from relying upon the recommendation of the independent protection assessment reviewer; and
e)Costs.
There was no challenge to the application under s.476.
The section gives this court the same original jurisdiction as to migration decisions as the High Court under s.75(v) of the Commonwealth of Australia Constitution Act (the Constitution), which gives the courts power to determine relief against an officer of the Commonwealth either by mandamus, prohibition or injunction.
The Application relates to the decision of an assessor who conducted an independent assessment and found that the applicant did not meet the criteria for a Protection Visa set out in s.36(2) of the Act.
The subsequent recommendation was that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Refugees Convention).
The date of the assessors report was 22 March 2012 and the applicant was notified by letter dated 16 April 2012 of the assessment.
The Amended Application which was filed 8…

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: [2013] FCCA 647
Decision Date: 28 June 2013

CaseChat Overview and Summary

BZACX, the applicant, sought judicial review of a decision made by the Minister for Immigration, the respondent, to refuse to grant a protection visa. The dispute concerned the applicant's claim for protection based on a fear of persecution in their country of origin. The matter came before Judge Coates of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in assessing the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant aspects of the applicant's evidence and submissions, and whether the adverse credibility findings made against the applicant were reasonably open on the evidence. The Court also considered whether the delegate had adequately assessed the risk of harm the applicant would face upon return to their country of origin, having regard to the country information before them.

Judge Coates reasoned that the delegate's assessment of the applicant's credibility was flawed. The delegate had made adverse credibility findings without adequately explaining the basis for those findings or properly engaging with the applicant's evidence. The Court reiterated the principle that adverse credibility findings must be based on demonstrable inconsistencies or implausibilities in the applicant's account, and that a failure to do so constitutes an error of law. Furthermore, the Court found that the delegate had not adequately considered the country information in relation to the specific risks faced by individuals with the applicant's profile, leading to an insufficient assessment of the real chance of harm.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders