BZADW v Minister for Immigration - [2013] FCCA 1229

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZADW v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1229

Catchwords:
MIGRATION – Judicial review – independent merits review – whether wrong test of persecution applied – whether wrong interpretation of serious harm applied – whether failure to apply correct test, misunderstanding or misconstruction of relevant test – whether failure to take into account a relevant consideration namely alleged constructive dismissal from employment – whether failure to properly consider question of complementary protection.

Legislation:
Migration Act 1958 (Cth), ss.5, 36(2)(a), 36(2)(aa), 36(2A), 91R, 91R(1), 91R(1)(b), 91R(1)(c), 91R(2), 91R(2)(e), 91R(2)(f), 91R(6)

Migration Regulations 1994 (Cth)
1951 Convention Relating to the Status of Refugees, article 1A(2)
1967 Protocol Relating to the Status of Refugees

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Constructive Dismissal of Employees in Australia (1994) 68 ALR 494
Diatlov v Minister for Immigration and Multicultural Affairs (1999) 167 ALR 313
Minister for Immigration & Citizenship v SZJGV; Minister for Immigration & Citizenship v SZJXO [2009] HCA 40
Plaintiff M61/2010E v Commonwealth of Australia (2012) 243 CLR 319

Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers’ Guild re Dismissal [1979] AR (NSW) 392
Roberts v The Prince Alfred College (1979) 46 SAIR 598
S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
SZATV v Minister for Immigration & Citizenship [2007] HCA 40

Applicant:

BZADW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

J BARTLETT IN HIS/HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSOR

File Number:

BRG 1080 of 2012

Judgment of:

Judge Jarrett

Hearing date:

10 May 2013

Date of Last Submission:

10 May 2013

Delivered at:

Brisbane

Delivered on:

3 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr Boccabella

Solicitors for the Applicant:

A J Torbey & Associates

Counsel for the Respondents:

Ms Wheatley

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 7 December 2012 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1080 of 2012

BZADW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

J BARTLETT IN HIS/HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived at Christmas Island on 19 December, 2011. Following an unsuccessful request for a Protections Obligations Evaluation and an unsuccessful Independent Protection Assessment, the applicant has filed this application for review.
The applicant seeks the issue of constitutional writs directed to preventing the first respondent from acting upon a recommendation of the second respondent that the claimant not be recognised as a person to whom Australia has protection obligations or as a member of the same family unit of such a person.
The applicant’s application contains nine grounds of review, each expressed in general terms. In the course of oral submissions, the applicant, by Counsel, abandoned the ninth ground of review set out in his application. Notwithstanding the eight grounds of…

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 1229
Decision Date: 3 September 2013

CaseChat Overview and Summary

BZADW (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia seeking to challenge the Tribunal's decision.

The central legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the Tribunal had properly considered the evidence relating to the applicant's fear of persecution, and whether it had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *1951 Convention relating to the Status of Refugees* (as amended). This involved examining whether the Tribunal had adequately addressed the subjective and objective elements of the applicant's fear, and whether it had correctly identified the particular social group to which the applicant claimed to belong.

Judge Jarrett found that the Tribunal had made a jurisdictional error in its assessment of the applicant's claims. The Court reasoned that the Tribunal had failed to adequately engage with the specific evidence presented by the applicant regarding the nature and extent of the persecution they feared. Furthermore, the Court held that the Tribunal had not properly considered the applicant's membership of a particular social group in accordance with established legal principles. Consequently, the Tribunal's decision was set aside.

The Court ordered that the decision of the Administrative Appeals Tribunal be quashed and remitted to the Tribunal for redetermination according to law.

Orders