BZM18 v Minister for Immigration - [2019] FCCA 2216

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZM18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2216

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal ignored relevant material submitted by the applicant – whether the Tribunal relied upon irrelevant information in making its decision – whether the Tribunal made a jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 422B, 427

Cases cited:

Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
S14/2002 v Refugee Review Tribunal [2004] FCAFC 171
Sachin v Minister for Immigration and Border Protection [2017] FCA 527

Applicant:

BZM18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1100 of 2018

Judgment of:

Judge Humphreys

Hearing date:

13 August 2019

Date of Last Submission:

13 August 2019

Delivered at:

Parramatta

Delivered on:

13 August 2019

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents:

Ms Davyskib, Minter Ellison

ORDERS

The name of the First Respondent to be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1100 of 2018

BZM18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

The applicant is a Chinese national. The applicant first arrived in Australia on 27 December 2006 on a student visa. The applicant departed Australia and returned shortly thereafter in 2007, 2009 and 2010. The applicant has been continuously in Australia since 6 May 2010.
The applicant’s student visa was cancelled by a delegate of the Minister on 6 September 2011. The applicant sought a review of that decision by the Administrative Appeals Tribunal (“the Tribunal”). On 19 July 2013, the Tribunal affirmed the Minister’s decision to cancel the applicant’s student visa. The applicant then sought ministerial intervention. This was refused on 7 April 2014.
On 17 April 2014, the applicant lodged an application for a protection visa. This was refused by the Minister on 11 September 2015. The applicant then sought merits review in the Tribunal. The applicant appeared before the Tribunal on 22 December 2017 to provide evidence and argument in support of his application. On 19 March 2018, the Tribunal affirmed the decision to refuse the applicant’s protection visa application. The applicant now seeks judicial review of the Tribunal’s decision in this Court.

Administrative Appeals Tribunal’s Decision

The applicant’s claims are set out in paragraphs 22 to 24 of the Tribunal’s decision. However, previously, at paragraphs 19 to 21 of the decision, the Tribunal considered and rejected a request for an adjournment to allow Pastor Raymond Davey to attend and give evidence. The Tribunal concluded that the applicant could submit…

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: [2019] FCCA 2216
Decision Date: 13 August 2019

CaseChat Overview and Summary

The applicant, BZM18, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning an application for a Protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around whether the AAT had properly considered the material presented by the applicant and whether it had improperly relied on irrelevant information when reaching its decision. The matter came before Judge Humphreys in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the AAT had committed a jurisdictional error by failing to consider relevant material submitted by the applicant, and conversely, whether it had made a jurisdictional error by relying on irrelevant information in its assessment of the Protection visa application. These questions required the Court to examine the scope of the AAT's obligations under the relevant migration legislation and the principles governing the consideration of evidence in administrative decision-making.

Judge Humphreys found that the AAT had not made a jurisdictional error. The Court's reasoning focused on the Tribunal's obligation to consider all relevant material, but not necessarily to give it specific weight or detailed analysis if it was not determinative of the ultimate issue. Similarly, the Court determined that the information the applicant alleged was irrelevant had not been relied upon in a manner that vitiated the decision. The Court applied established principles regarding the review of administrative decisions, emphasizing that a jurisdictional error would only be found if the Tribunal had demonstrably failed to engage with a material issue or had based its decision on an irrelevant consideration that fundamentally undermined the fairness or legality of the process.

The application for judicial review was dismissed.

Orders