BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76

BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76

The Tribunal's reasons did not disclose consideration of the two notarised corroborative witness statements, which were not peripheral and were capable, if accepted, of supporting the appellant's factual allegations. Because the Tribunal's adverse credibility conclusion was founded on an accumulation of factors, some of which concerned matters corroborated by the statements, it was possible the Tribunal could have assessed credibility and the substantive issues differently had it been conscious of the statements when reasoning. The failure to consider that relevant material therefore constituted jurisdictional error. The s 424AA and s 425 grounds were rejected.

Jurisdiction
Australia
Judgment Date
22 May 2018
Procedural Posture
Migration Appeal From Federal Circuit Court of Australia / Appeal From BXK15 & Ors V Minister for Immigration & Anor [2017] FCCA 889
Outcome
Appeal allowed.
Legal Topics
['protection Visa' 'jurisdictional Error' 'corroborative Evidence' 'country Information' 'procedural Fairness' 'migration Act 1958 (cth) Ss 415, 424 AA, 425']
['migration' 'administrative Law'] ['protection Visa' 'jurisdictional Error' 'corroborative Evidence' 'country Information' 'procedural Fairness' 'migration Act 1958 (cth) Ss 415, 424 Aa, 425']

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Procedural Posture

Migration Appeal From Federal Circuit Court of Australia / Appeal From BXK15 & Ors V Minister for Immigration & Anor [2017] FCCA 889

Legal Issues

  1. 1 ['Whether the Tribunal failed to consider corroborative evidence contained in two witness statements.' 'Whether any failure to consider the corroborative evidence constituted jurisdictional error.' 'Whether the Tribunal breached s 424AA of the Migration Act 1958 (Cth) by failing to put particulars of country information to the appellants during the hearing.' 'Whether the Tribunal contravened s 425 of the Migration Act 1958 (Cth) by failing to afford the appellants a meaningful opportunity to present arguments and make submissions.']

Ratio Decidendi

The Tribunal's reasons did not disclose consideration of the two notarised corroborative witness statements, which were not peripheral and were capable, if accepted, of supporting the appellant's factual allegations. Because the Tribunal's adverse credibility conclusion was founded on an accumulation of factors, some of which concerned matters corroborated by the statements, it was possible the Tribunal could have assessed credibility and the substantive issues differently had it been conscious of the statements when reasoning. The failure to consider that relevant material therefore constituted jurisdictional error. The s 424AA and s 425 grounds were rejected.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders of primary judge made on 26 May 2017 be set aside.' 'A writ of certiorari issue, directed at the second respondent quashing its decision made on 21 August 2015.' "The appellant's application for review of the first respondent's decision be remitted to the second respondent to be...