BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291

BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291

The Tribunal committed jurisdictional error because, on the critical issue of whether the appellant would be granted bail promptly on return to Sri Lanka, it relied on the superseded 2013 DFAT Report, which did not mention the requirement in the 2015 DFAT Report that a family member act as guarantor. Although the Tribunal extracted the relevant part of the 2015 DFAT Report, it did not take that part into account in the required sense, gave no evaluation process for relying on the older materially different report, and thereby failed to comply with Ministerial Direction No 56 and s 499(2A) of the Migration Act 1958 (Cth), or alternatively took into account an irrelevant consideration or...

Jurisdiction
Australia
Judgment Date
24 August 2018
Procedural Posture
Migration Appeal From Decision of the Federal Circuit Court Dismissing Judicial Review of a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia
Outcome
Appeal allowed.
Legal Topics
['protection Visa' 'jurisdictional Error' 'country Information' 'ministerial Direction No 56' 'section 499 of the Migration Act 1958 (cth)' 'section 425 of the Migration Act 1958 (cth)' 'sri Lankan Returnees' 'bail on Return After Illegal Departure']
['migration' 'administrative Law'] ['protection Visa' 'jurisdictional Error' 'country Information' 'ministerial Direction No 56' 'section 499 of the Migration Act 1958 (cth)' 'section 425 of the Migration Act 1958 (cth)' 'sri Lankan Returnees' 'bail on Return After Illegal Departure']

Case Brief

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Procedural Posture

Migration Appeal From Decision of the Federal Circuit Court Dismissing Judicial Review of a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Tribunal failed to comply with s 425(1) of the Migration Act 1958 (Cth) by failing to provide a meaningful hearing on the practical availability of bail upon return to Sri Lanka.' 'Whether the Tribunal made a finding not open on the evidence, or not rationally supported by the evidence, by relying on an untested assumption that bail was practically available to the appellant.' 'Whether the Tribunal failed to comply with s 499 of the Migration Act 1958 (Cth) and Ministerial Direction No 56 by failing to take into account the most recent DFAT country information report in relation to the availability of bail and the requirement for a family member to act as guarantor.' 'Whether the Tribunal took into account an irrelevant consideration by relying on superseded DFAT country information.']

Ratio Decidendi

The Tribunal committed jurisdictional error because, on the critical issue of whether the appellant would be granted bail promptly on return to Sri Lanka, it relied on the superseded 2013 DFAT Report, which did not mention the requirement in the 2015 DFAT Report that a family member act as guarantor. Although the Tribunal extracted the relevant part of the 2015 DFAT Report, it did not take that part into account in the required sense, gave no evaluation process for relying on the older materially different report, and thereby failed to comply with Ministerial Direction No 56 and s 499(2A) of the Migration Act 1958 (Cth), or alternatively took into account an irrelevant consideration or...

Court Disposition

Appeal allowed.

Orders

  • ['The appellant has leave to appeal in the form of the Amended Draft Notice of Appeal dated 21 February 2018.' 'The appeal be allowed.' 'Orders 1 and 2 of the decision dated 22 September 2016 of the Federal Circuit Court of Australia be set aside.' 'A writ of certiorari be issued to quash the decision of the Refugee...