CBK16 v Minister for Immigration - [2017] FCCA 2355

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBK16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2355

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to act fairly and reasonably – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36, pt.7

Cases cited:

AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131; [2015] FCA 1424

Applicant:

CBK16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2032 of 2016

Judgment of:

Judge Smith

Hearing date:

21 September 2017

Date of Last Submission:

21 September 2017

Delivered at:

Sydney

Delivered on:

13 October 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2032 of 2016

CBK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh who arrived in Australia on a visitor’s visa on 6 December 1997. He first applied for a protection visa on 5 January 1998. That application was refused by a delegate of the Minister, with the decision being affirmed by the Refugee Review Tribunal[1] (RRT). The applicant unsuccessfully sought judicial review through the Courts and subsequently made further applications and requests for Ministerial intervention with the RRT and Minister respectively. He also, on two separate occasions, applied for a partner visa, the first of which was refused by a decision made by a delegate of the Minister and the second, which was found to be invalid.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 23 October 2013, the applicant made an application for a protection visa. That application was refused by a decision made by a delegate of the Minister on 26 August 2014. The applicant appealed to the Administrative Appeals Tribunal (Tribunal) for review of that decision and attended and gave evidence at a hearing on 17 May 2016. On 24 June 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. It is this decision which is under judicial review of this Court.

Background

The applicant claimed to have been an active member of the Bangladesh Nationalist Party (BNP) prior to leaving for Australia. He said that shortly after the Awami League (AL) came to power in June 1996, he along with other BNP members, were targeted by AL members. The applicant claimed that a parliamentarian and AL activist named ‘Salim’ had threatened to kidnap and kill him and had forced him to go into hiding for 6 months with his sister prior to leaving for Australia.
The applicant also claimed that he was the victim of numerous fraudulent criminal cases…

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 2355
Decision Date: 13 October 2017

CaseChat Overview and Summary

The applicant, CBK16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CBK16 a visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when making the decision.

Judge Smith reasoned that the Minister's delegate had failed to properly consider the applicant's submissions regarding their rehabilitation and remorse, which were relevant factors under the Migration Act 1958 (Cth). The delegate's decision was found to have been based on an overly narrow interpretation of the relevant legislative provisions, effectively ignoring material that ought to have been considered. This failure constituted a jurisdictional error.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders