BES16 v Minister for Immigration and Border Protection [2018] FCA 78

BES16 v Minister for Immigration and Border Protection [2018] FCA 78

The BRIS information concerning the third birth certificate was neutral or non-dispositive information used by the Tribunal to assess the authenticity of the appellant's certificates, and was not information within s 424A(1)(a). The Tribunal clearly raised with the appellant that one or more birth certificates might be bogus, explained the visa consequence, and invited him to provide a reasonable explanation, so there was no breach of s 425(1). The Tribunal's rejection of the appellant's explanations and its finding that his conduct was deliberate did not misconceive s 91WA(2)(a). Each ground failed and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
14 February 2018
Procedural Posture
Migration Appeal; Judicial Review of Refusal of a Protection Visa / Appeal From Federal Circuit Court of Australia Dismissal of Judicial Review Application
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'bogus Documents' 'procedural Fairness' 'section 424 a Information' 'section 425 Hearing Obligation' 'section 91 WA Reasonable Explanation']
['migration' 'administrative Law' 'judicial Review'] ['protection Visa' 'bogus Documents' 'procedural Fairness' 'section 424 a Information' 'section 425 Hearing Obligation' 'section 91 WA Reasonable Explanation']

Case Brief

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Procedural Posture

Migration Appeal; Judicial Review of Refusal of a Protection Visa / Appeal From Federal Circuit Court of Australia Dismissal of Judicial Review Application

Legal Issues

  1. 1 ["Whether BRIS records concerning the appellant's birth amounted to information for the purposes of s 424A(1)(a) of the Migration Act 1958 (Cth)." 'Whether BRIS records were excluded from s 424A by s 424A(3)(b) because the third birth certificate was given by the appellant for the purposes of the review.' 'Whether the Tribunal breached s 425(1) by failing to tell the appellant how the first and second birth certificates might be bogus documents within s 5(1).' 'Whether the Tribunal failed to give the appellant a fair opportunity to show a reasonable explanation for providing a bogus document.' 'Whether the Tribunal misconceived or misapplied the concept of a reasonable explanation under s 91WA(2)(a).']

Ratio Decidendi

The BRIS information concerning the third birth certificate was neutral or non-dispositive information used by the Tribunal to assess the authenticity of the appellant's certificates, and was not information within s 424A(1)(a). The Tribunal clearly raised with the appellant that one or more birth certificates might be bogus, explained the visa consequence, and invited him to provide a reasonable explanation, so there was no breach of s 425(1). The Tribunal's rejection of the appellant's explanations and its finding that his conduct was deliberate did not misconceive s 91WA(2)(a). Each ground failed and the appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs."]