DBA16 v Minister for Immigration - [2017] FCCA 320

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBA16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 320

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – whether the process followed by the Authority was procedurally unfair considered – where the Authority followed its code of procedure – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5, 5H, 5J, 65, 348, 357A, 359A, 414, 422B, 424A, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473FA, 473GA, 473GB, 473JA, 473JB, 473JC, 473JD, 473JE, 473JF
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases cited:

AFK16 v Minister for Immigration [2016] FCCA 1826

BBS16 v Minister for Immigration & Anor [2017] FCCA 4
CDR16 v Minister for Immigration & Anor [2016] FCCA 2759

Applicant:

DBA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 504 of 2016

Judgment of:

Judge Driver

Hearing date:

23 February 2017

Delivered at:

Sydney

Delivered on:

23 February 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 18 October 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 504 of 2016

DBA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 September 2016. The Authority affirmed a decision of a delegate of the Minister not to grant the applicant a form of protection visa known as a Safe Haven Enterprise Visa (SHEV). Background facts relating to this matter are set out in the Minister’s submissions filed on 16 February 2017.
The applicant is a national of Bangladesh. He arrived in Australia as an unauthorised maritime arrival on 14 April 2013[1].
[1] Court Book (CB) 156 [2], 200 [1]
On 14 July 2013, the applicant participated in an Irregular Maritime Arrival and Induction Interview with an officer in the Minister’s Department (Department)[2].
[2] CB 1-19
On 6 November 2015, the Department invited the applicant to make an application for, relevantly, a SHEV[3].
[3] CB 22-32
On 20 April 2016, the applicant applied for a SHEV[4]. In support of his application, the applicant made a statutory declaration in which he claimed to fear persecution at the hands of members of the Awami League political party by reason of his membership of the Bangladesh Nationalist Party (BNP) and his having sought asylum in Australia unsuccessfully[5].
[4] CB 49-115
[5] CB 93-99
On 19 May 2016, the applicant’s former representative sent to the Department a submission in support of the applicant’s claims[6].
[6] CB…

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 320
Decision Date: 23 February 2017

CaseChat Overview and Summary

DBA16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Afghanistan, claimed to fear persecution on the basis of imputed political opinion and membership of a particular social group. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not substantiated and that the applicant would not be at risk of persecution if returned to Afghanistan. The applicant subsequently applied to the Federal Circuit and Family Court of Australia for judicial review of this decision.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess the evidence presented in support of his protection claims, particularly concerning the alleged persecution he faced in Afghanistan. The applicant contended that the delegate's adverse credibility findings were not open on the evidence and that the delegate had failed to adequately assess the risk of harm should the applicant be returned to his country of origin.

Judge Driver found that the delegate had failed to properly assess the applicant's claims regarding imputed political opinion and membership of a particular social group. The Court held that the delegate's adverse credibility findings were not adequately explained and did not engage with the entirety of the evidence. Consequently, the delegate's decision was affected by jurisdictional error. The Court quashed the delegate's decision and remitted the application for a protection visa to the respondent for redetermination according to law.

Orders