BZS15 v Minister for Immigration - [2017] FCCA 1217

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZS15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1217

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant claims denial of procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91R(1)(c)

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR

SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant:

BZS15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2220 of 2015

Judgment of:

Judge Hartnett

Hearing date:

6 April 2017

Delivered at:

Melbourne

Delivered on:

7 June 2017

REPRESENTATION

The Applicant:

In Person

Solicitor acting as Counsel for the First Respondent:

Ms Briffa

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2220 of 2015

BZS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant relied upon an amended application filed on 6 January 2017 seeking judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 18 September 2015 wherein the Tribunal affirmed a decision made by a delegate of the First Respondent not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The grounds of application are as follows:-
“1. The Tribunal fell into jurisdictional error by not assessing my claims cumulatively of being a Tamil Hindu male from North of Sri Lanka associated with LTTE and was tortured by the Sri Lankan Authorities due to my profile.
2. The Tribunal’s finding that it does not accept that my wife filed report with Human Rights Commission, Sri Lanka and the Sri Lankan authorities continue to have interest on me were not supported by evidence.
3. The Tribunal fell into jurisdictional error by not assessing my integer claims.
4. The Tribunal has not assessed my claims that I will suffer serious harm under section 91R of the Migration Act on my return to Sri Lanka due to my profile.
5. The Tribunal’s finding that questioning, arrest and the poor conditions in remand is not amount to systematic and discriminatory as required by s.91R(1)(C) is so illogical and irrational and not supported by evidence.
6. The Tribunal erred in its construction of the phrase “intentionally inflicted” as it fell into Jurisdictional error because it only considered whether there was an “actual, subjective, intent” to cause harm to the applicant (the harm being exposure to poor prison conditions) and failed to consider whether the Sri Lankan authorities had the necessary intent because they foresaw the consequences of their actions. (SZTAL-v- Minister for Immigration and Border Protection {2016} FACFC 69 – Subject to High Court Appeal – S272/2016)”
The First Respondent…

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 1217
Decision Date: 7 June 2017

CaseChat Overview and Summary

The applicant, BZS15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate of the Minister had properly considered all relevant factors and applied the correct legal principles in assessing the applicant's claims for protection under the *Migration Act 1958* (Cth).

Judge Hartnett found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding past persecution and the real chance of future persecution. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and subsequent cases, emphasizing the importance of a comprehensive and fair assessment of protection claims. The delegate's reasoning was found to be flawed, leading to a conclusion that jurisdictional error had occurred.

Consequently, the Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders