BZD17 v Minister for Immigration - [2017] FCCA 3186

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZD17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3186

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to properly consider evidence – whether the decision was unreasonable – no jurisdictional error identified – amended application dismissed.

PRACTICE AND PROCEDURE – Application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 476

Applicant:

BZD17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1416 of 2017

Judgment of:

Judge Street

Hearing date:

15 December 2017

Date of Last Submission:

15 December 2017

Delivered at:

Sydney

Delivered on:

15 December 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Mr K Eskerie
Sparke Helmore Lawyers

ORDERS

The oral application for an adjournment is dismissed.
The amended application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1416 of 2017

BZD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 April 2017 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Cameroon and his claims were assessed against that country.
The applicant arrived in Australia as the holder of a Visitor (Business) (sub-class 600) Visa on 16 June 2014. On 11 July 2014, the applicant lodged an application for a protection visa. On 27 May 2015, the delegate refused the grant of the visa.

The Tribunal’s decision

On 22 June 2015, the applicant applied to the Tribunal for review. The applicant attended three hearings to give evidence and present arguments on 9 February 2017, 16 February 2017, and 19 April 2017. Throughout the review the applicant was represented by his migration agent. A number of witnesses were called to give evidence.

Claims for protection

The applicant claims to fear harm, in summary, by reason of being a homosexual. The applicant alleges that homosexuals are not welcome in Cameroon and face rejection by the population, their families, and the authorities. The applicant alleges he was forced to marry a woman on 12 December 2008 by his family. The applicant alleges he did not reveal his homosexuality to his wife and that on 22 February 2014 his wife followed him to a nightclub, where she found him with a man called “E”. The applicant alleged that he and E were surrounded and beaten and that E was killed. The applicant alleges he was arrested and taken to a police station and the applicant was taken to hospital, where he remained…

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: [2017] FCCA 3186
Decision Date: 15 December 2017

CaseChat Overview and Summary

The applicant, BZD17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning their application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around whether the AAT had adequately considered the evidence presented by the applicant and whether its decision was so unreasonable as to constitute jurisdictional error. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the AAT had failed to properly consider all relevant evidence, including evidence relating to the applicant's claims for protection, and whether the AAT's ultimate decision was so unreasonable that it amounted to jurisdictional error. Additionally, the Court considered whether the AAT had erred in refusing the applicant's request for an adjournment, and if so, whether this refusal was contrary to the interests of the administration of justice.

Judge Street found that the AAT had not committed jurisdictional error. The Court was satisfied that the Tribunal had engaged with the evidence presented by the applicant, even if it ultimately reached a conclusion adverse to the applicant's interests. The refusal of the adjournment was also found not to be an error, as the Tribunal had provided sufficient reasons for its decision in that regard. Consequently, the amended application for judicial review was dismissed.

Orders