FROST & BONE - [2017] FCCA 3022

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEG17 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2018] FCCA 3022

Catchwords:
MIGRATION – Review of decisions – Judicial review – decision of Refugee Review Tribunal – whether tribunal misinterpreted or misapplied legislation – whether decision of tribunal was unreasonable – whether tribunal properly considered reasonableness of relocation.

Legislation:

Migration Act 1958 (Cth), ss.36, 36(2), 36(2)(a), 36(2)(aa), 36(3), 36(4), 36(4)(a), 36(4)(b), 36(5A), 65
Migration Regulations 1994 (Cth) cl.866.221 of Schedule 2

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

BEG17 v Minister for Immigration & Anor [2018] FCCA 216

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration and Border Protection v MZAIV [2016] FCA 251

Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522

SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570

WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568

First Applicant:

BEG17

Second Applicant:

BET17

Third Applicant:

BEU17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 257 of 2017

Judgment of:

Judge Jarrett

Hearing date:

15 June 2018

Date of Last Submission:

15 June 2018

Delivered at:

Brisbane

Delivered on:

26 October 2018

REPRESENTATION

Counsel for the Applicants:

Mr Boccabella

Solicitors for the Applicants:

Chand Lawyers

Counsel for the First Respondent:

Mr J Byrnes

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The application filed on 21 March 2017 is dismissed.
Within seven (7) days of the date of these orders the first respondent file and serve submissions as to costs of these proceedings.
Within fourteen (14) days of the date of these orders the applicants file and serve submissions as to costs of these proceedings.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 257 of 2017

BEG17

First Applicant

BET17

Second Applicant

BEU17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 21 March 2017, the applicants filed an application for judicial review of the decision of the then Refugee Review Tribunal made on 22 October, 2014. By that decision the tribunal had affirmed a decision of the delegate of the first respondent not to grant to the applicants Protection (Class XA) visas.
The application was commenced outside of the time limited for the bringing of such an application and an extension of time was necessary for the applicants to pursue the application. I granted that extension on 31 January, 2018: BEG17 & Ors v Minister for Immigration and Border Protection& Anor [2018] FCCA 216.
For the reasons that follow, the application for review must be dismissed.

Background

I have adapted the factual recitation that follows from the written submissions delivered by the first respondent. Those submissions contain an accurate summary of the factual background to the proceedings. The contrary was not contended by the applicants.
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.

Keep reading for free

Create a free CaseChat account to read FROST & BONE and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 3022
Decision Date: 26 October 2018

CaseChat Overview and Summary

In the matter of *Frost & Bone*, Judge Jarrett of the [Court Name] considered a dispute between [Party A] and [Party B] concerning [briefly describe the subject matter of the dispute, e.g., a contractual disagreement, a property boundary issue, a claim for damages]. The proceedings were brought before the Court for determination.

The central legal issues before the Court were [state the primary legal question(s) the court had to decide, e.g., whether a valid contract existed, the interpretation of a specific clause, the extent of a party's liability]. The Court was required to apply relevant legal principles to the facts as presented by the parties to resolve these questions.

Judge Jarrett's reasoning focused on [explain the court's approach, e.g., an analysis of the evidence, the application of statutory provisions, the interpretation of precedent]. The Court applied the legal principle that [state the key legal principle or test applied by the court, e.g., the parol evidence rule, the test for negligence, the doctrine of frustration]. This led the Court to conclude that [briefly state the court's finding on the legal issues].

The Court ordered that [state the final orders or outcome of the case, e.g., judgment for the plaintiff, dismissal of the claim, specific performance].

Orders