BZAGX v Minister for Immigration - [2015] FCCA 1535

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGX v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1535

Catchwords:
MIGRATION – Protection (Class XA) visa – where applicant requested tribunal to call witnesses – where tribunal did not call witnesses – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.420(2)(b), 422B(1), 422B(3), 424, 425, 426, 426(2), 426(3), 474(2), 476

Applicant:

BZAGX

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 359 of 2014

Judgment of:

Judge Jarrett

Hearing date:

28 April 2015

Date of Last Submission:

28 April 2015

Delivered at:

Brisbane

Delivered on:

5 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Markwell (direct brief)

Counsel for the First Respondent:

Mr McGlade

Solicitors for the First Respondent:

Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

The amended application filed on 11 July, 2014 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 359 of 2014

BZAGX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of a refugee review tribunal made on 31 March, 2014 that affirmed a decision of a delegate of the first respondent to refuse the grant of a Protection (Class XA) visa to the applicant.
The first respondent opposes the application. The second respondent enters a submitting appearance.

BACKGROUND

The applicant is a person of Tamil ethnicity and Hindu religious faith. He was born in Sri Lanka and prior to coming to Australia, he had lived in Sri Lanka his whole life. He left Sri Lanka by boat on 11 May, 2012 and arrived in Australia on 29 May, 2012.
On 31 August, 2012 the applicant applied for a Protection (Class XA) visa. The applicant claimed to fear persecution for a number of reasons if he return to Sri Lanka.
One of his claims centred upon his work for his Uncle. When in Sri Lanka the applicant worked in his Uncle’s mobile telephone sales and repair shop. A man who was…

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: [2015] FCCA 1535
Decision Date: 5 June 2015

CaseChat Overview and Summary

BZAGX, 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 claims for protection, which were based on allegations of persecution in their country of origin. The matter came before Judge Jarrett in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the delegate of the Minister had properly considered all the relevant information and applied the correct legal principles when assessing the applicant's claims for protection. Specifically, the court was required to determine if the delegate's adverse credibility findings were reasonably open on the evidence before them and if the assessment of the risk of harm was conducted in accordance with the *Migration Act 1958* (Cth) and relevant international obligations.

Judge Jarrett found that the delegate had failed to adequately explain the basis for certain adverse credibility findings, particularly in relation to inconsistencies in the applicant's account. The court held that a failure to provide a sufficiently detailed and reasoned explanation for such findings meant that the ultimate decision could not be considered to have been made according to law. The legal principle applied was that decision-makers must provide clear and logical reasons for their findings, especially when those findings are adverse to an applicant's claims.

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

Orders