DBB16 v Minister for Immigration - [2017] FCCA 375

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBB16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 375

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Authority constructively failed to exercise its jurisdiction or denied the applicant procedural fairness considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 473CA, 473DB, 473DC

Applicant:

DBB16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 505 of 2016

Judgment of:

Judge Driver

Hearing date:

1 March 2017

Delivered at:

Sydney, via videolink to Perth

Delivered on:

1 March 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr B D Kaplan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 19 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

PEG505 of 2016

DBB16

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 16 September 2016. Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are uncontroversial and are set out in the Minister’s submissions.
The applicant is a national of Bangladesh. He entered Australia as an “unauthorised maritime arrival” (as defined in s.5AA of the Migration Act 1958 (Cth) (Migration Act)) on 13 November 2012[1].
[1] Court Book (CB) 158
On 14 November 2012, the applicant participated in an Irregular Maritime Arrival Entry Interview[2].
[2] CB 1-13
On 28 August 2015, the Minister’s Department (Department) wrote to the applicant to invite him to apply for, relevantly, a Safe Haven Enterprise Visa (SHEV)[3].
[3] CB 22-27
On 15 January 2016, the applicant made an application for a SHEV[4]. Included in the application was an undated statement in which the applicant set out his claims for protection[5]. The applicant provided a further statement to the Department on 23 April 2016[6].
[4] CB 50-93
[5] CB 90-93
[6] CB 117-123
In short, the applicant feared persecution for reasons of his having been in a relationship with a Christian woman (Ms T) (the applicant being a follower of Islam), his sexual behaviour, his having been adopted, his having witnessed the murder of a member of the Bangladesh Nationalist Party (BNP) at the hands of the Awami League (AL) and his perceived opposition to both parties, his actual lack of affiliation with any political parties, and his having departed Bangladesh unlawfully and would return to that country as a failed asylum seeker. The applicant feared persecution from sources comprising Ms T’s brother, leaders and members of his local community, the BNP, the AL and the Bangladeshi authorities.
On 28 April 2016, the…

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 375
Decision Date: 1 March 2017

CaseChat Overview and Summary

The applicant, DBB16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered and applied the relevant criteria for the grant of a protection visa, specifically in relation to the applicant's claims of persecution. This involved an assessment of whether the delegate's findings of fact were supported by evidence and whether the delegate had correctly applied the legal tests for establishing a well-founded fear of persecution.

Judge Driver found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding past events and the potential for future harm. The Court held that the delegate's reasoning was flawed because it did not sufficiently engage with the applicant's detailed account of events and the specific threats faced. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and provide reasons that demonstrate this consideration, particularly when assessing claims of persecution under the Migration Act 1958 (Cth).

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

Orders