BIE15 v Minister for Immigration and Border Protection [2019] FCA 1646

BIE15 v Minister for Immigration and Border Protection [2019] FCA 1646

The Tribunal did not commit jurisdictional error. It understood and considered the substance of the appellant's claim that she lived in Australia without a family member, its adverse credibility findings were open and not unreasonable, illogical or irrational, the Minister's Guidelines relating to s 48B were not a relevant consideration for the Tribunal, binding Full Court authority established that the Tribunal was not required to consider a s 36(2)(a) claim barred by s 48A, and any procedural fairness breach arising from non-disclosure of the s 438 certificate was not material because the certified documents were not shown to be relevant or capable of affecting the outcome.

Jurisdiction
Australia
Judgment Date
16 October 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'complementary Protection' 'judicial Review' 'jurisdictional Error' 'procedural Fairness' 'section 438 Certificate' 'section 48 a Bar' 'referral to Full Court']
['migration Law' 'administrative Law' 'practice and Procedure'] ['protection Visa' 'complementary Protection' 'judicial Review' 'jurisdictional Error' 'procedural Fairness' 'section 438 Certificate' 'section 48 a Bar' 'referral to Full Court']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the Tribunal made a jurisdictional error by failing to consider the appellant's claim that she would be considered an infidel because she had lived in Australia without a family member." "Whether the Tribunal's adverse credibility reasoning was unreasonable, illogical or irrational." "Whether the Tribunal failed to take into account the Minister's Guidelines relating to s 48B of the Migration Act 1958 (Cth)." 'Whether the Tribunal erred in concluding that it was precluded by s 48A from considering claims under s 36(2)(a).' "Whether the Tribunal's failure to disclose the existence of a s 438 certificate constituted material jurisdictional error." 'Whether it was appropriate to refer the matter to a Full Court under s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

The Tribunal did not commit jurisdictional error. It understood and considered the substance of the appellant's claim that she lived in Australia without a family member, its adverse credibility findings were open and not unreasonable, illogical or irrational, the Minister's Guidelines relating to s 48B were not a relevant consideration for the Tribunal, binding Full Court authority established that the Tribunal was not required to consider a s 36(2)(a) claim barred by s 48A, and any procedural fairness breach arising from non-disclosure of the s 438 certificate was not material because the certified documents were not shown to be relevant or capable of affecting the outcome.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The notice of appeal filed on 8 December 2016 is dismissed.' "The appellant is to pay the first respondent's costs as agreed or taxed."]