BHG15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1993

BHG15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1993

The appeal failed because the Tribunal's adverse credibility reasoning in relation to the foundation of the appellant's complementary protection claim was open, neither irrational nor illogical, and supported by inconsistencies between the appellant's account and country information. Although the s 438 certificate was invalid, the undisclosed document was a routine internal communication about considering a bridging visa and could not have been material to the Tribunal's credibility assessment or any other aspect of its reasons; therefore, under SZMTA, the non-disclosure had no material consequence and did not establish jurisdictional error.

Jurisdiction
Australia
Judgment Date
14 November 2019
Procedural Posture
Migration Appeal From a Judgment of the Federal Circuit Court Dismissing an Application for Judicial Review of a Decision Refusing to Grant a Protection Visa / Final Hearing of Appeal in the Federal Court of Australia
Outcome
Leave granted to raise an additional ground of appeal, but the appeal was dismissed and the appellant was ordered to pay the first respondent's costs.
Legal Topics
['protection Visa' 'complementary Protection' 'judicial Review' 'jurisdictional Error' 'procedural Fairness' 'migration Act 1958 (cth) S 438 Certificate' 'credibility Assessment' 'materiality']
['migration' 'administrative Law'] ['protection Visa' 'complementary Protection' 'judicial Review' 'jurisdictional Error' 'procedural Fairness' 'migration Act 1958 (cth) S 438 Certificate' 'credibility Assessment' 'materiality']

Case Brief

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Procedural Posture

Migration Appeal From a Judgment of the Federal Circuit Court Dismissing an Application for Judicial Review of a Decision Refusing to Grant a Protection Visa / Final Hearing of Appeal in the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred by failing to find that the Administrative Appeals Tribunal committed jurisdictional error in its approach to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth).' "Whether the Tribunal's assessment of the appellant's credibility concerning his claimed political or industrial activity in India was affected by jurisdictional error, denial of natural justice or denial of procedural fairness." 'Whether leave should be granted to raise an additional ground concerning non-disclosure of a document purportedly covered by a certificate under s 438 of the Migration Act 1958 (Cth).' "Whether the conceded invalidity of the s 438 certificate and non-disclosure of the document had any material consequence for the Tribunal's decision."]

Ratio Decidendi

The appeal failed because the Tribunal's adverse credibility reasoning in relation to the foundation of the appellant's complementary protection claim was open, neither irrational nor illogical, and supported by inconsistencies between the appellant's account and country information. Although the s 438 certificate was invalid, the undisclosed document was a routine internal communication about considering a bridging visa and could not have been material to the Tribunal's credibility assessment or any other aspect of its reasons; therefore, under SZMTA, the non-disclosure had no material consequence and did not establish jurisdictional error.

Court Disposition

Leave granted to raise an additional ground of appeal, but the appeal was dismissed and the appellant was ordered to pay the first respondent's costs.

Orders

  • ['The name of the first respondent name be amended so as to read Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.' 'Leave be granted for the appellant to raise the following additional ground of appeal: The Tribunal denied the appellant procedural fairness or failed to conduct a...