Minister for Immigration v BSD17 - [2017] FCCA 2888

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v BSD17 & ANOR

[2017] FCCA 2888

Catchwords:
MIGRATION – Application of Minister for Immigration –effect of conversion legislation – power for matters to be considered by the Administrative Appeals Tribunal – whether the matter was properly before the Administrative Appeals Tribunal – finding that the Administrative Appeals Tribunal was in jurisdiction error by concluding that there was no jurisdiction for the Administrative Appeals Tribunal to hear the matter – application granted.

Legislation:

Migration Act 1958 (Cth), ss.35A, 45AA 69, 415, 426A
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

Applicant:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent:

BSD17

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 360 of 2017

Judgment of:

Judge Vasta

Hearing date:

6 November 2017

Date of Last Submission:

6 November 2017

Delivered at:

Brisbane

Delivered on:

6 November 2017

REPRESENTATION

Counsel for the Applicant:

Ms Wheatley

Solicitors for the Applicant:

Clayton Utz

Counsel for the First Respondent:

Mr Boccabella

Solicitors for the First Respondent:

H & N Lawyers

ORDERS

That the decision of the Tribunal of 16 March 2017 be brought into this Court and a writ of certiorari issue to quash the decision of the Tribunal.
A writ of mandamus issue directing the Tribunal to determine the matter according to law and that the Tribunal has an application for an XD Class visa before it and it is to decide on the merits whether that visa ought to be granted or not.
The First Respondent pay the Applicant's costs of and incidental to application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 360 of 2017

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

And

BSD17

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

This is a very unusual matter because the Minister is the actual Applicant. What has occurred in the matter is that the First Respondent made an application for a protection (XA) visa which is a permanent protection visa.
The delegate interviewed the First Respondent in October 2014. After that date, it would seem that the delegate was in the midst of weighing up all of the evidence to make the decision as to whether to grant the visa or to not grant the visa.
On 16 December 2014, the schedule, in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, dealing with these matters, came into effect. This meant that a new s.35A of the Migration Act 1958 (Cth) (“the Act”) was then enacted, which proscribed a number of protection classes of visas; the most pertinent being an XA visa, which is a permanent protection visa, and an XD visa, which is a temporary protection visa.
The Act and the schedule also came into effect to insert s. 45AA, which dealt with conversion visas; that is, the application for one visa is to be taken as an application for a different visa.…

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 2888
Decision Date: 6 November 2017

CaseChat Overview and Summary

Minister for Immigration (Appellant) appealed to the Federal Court of Australia against a decision of the Administrative Appeals Tribunal (AAT) which had set aside the Minister's decision to refuse to grant a protection visa to the respondent, BSD17. The AAT had found that BSD17 held a genuine fear of persecution should they be returned to their country of origin. The Minister's appeal concerned the AAT's assessment of the evidence and its application of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

The primary legal issue before the Federal Court was whether the AAT had erred in law in its assessment of the evidence relating to BSD17's claims of persecution. Specifically, the Court was required to consider whether the AAT had failed to adequately consider all relevant evidence, including evidence of country information, and whether it had applied the correct legal test in determining whether BSD17 had a well-founded fear of persecution. The Court also considered whether the AAT had properly applied the principles of procedural fairness.

Justice Vasta found that the AAT had made a jurisdictional error by failing to consider a significant piece of country information that was crucial to assessing the credibility of BSD17's claims. The Court held that the AAT's failure to engage with this evidence meant that its decision was not based on a proper consideration of all the material before it, and therefore, it had failed to exercise its powers according to law. The Court emphasised the importance of the AAT considering all relevant evidence, including up-to-date country information, when making its determinations.

The Federal Court allowed the appeal, set aside the AAT's decision, and remitted the matter to the AAT for redetermination according to law.

Orders