BPI17 v Minister for Immigration and Border Protection (No 2) [2020] FCA 252

BPI17 v Minister for Immigration and Border Protection (No 2) [2020] FCA 252

Although the primary judge erred by failing to address the appellant's 15 July 2019 submissions, including the apprehended bias contention, this Court determined the grounds itself and found that the omission would not have affected the outcome. The Tribunal had considered the appellant's political, religious conversion and complementary protection claims, its adverse credibility findings were open and not shown to be illogical, irrational or affected by apprehended bias, and the proposed new grounds lacked merit. The appeal was therefore dismissed and leave to rely on new grounds was refused.

Jurisdiction
Australia
Judgment Date
12 March 2020
Procedural Posture
Appeal From the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of a Tribunal Decision Affirming Refusal of a Protection Visa / Appeal Dismissed; Leave to Rely on New Grounds Refused
Outcome
Appeal dismissed; leave to rely on new grounds of appeal refused; appellant ordered to pay the first respondent's costs of the appeal.
Legal Topics
['protection Visa Refusal' 'jurisdictional Error' 'procedural Fairness' 'apprehended Bias' 'adverse Credibility Findings' 'complementary Protection' 'leave to Raise New Grounds on Appeal']
['migration' 'administrative Law' 'judicial Review'] ['protection Visa Refusal' 'jurisdictional Error' 'procedural Fairness' 'apprehended Bias' 'adverse Credibility Findings' 'complementary Protection' 'leave to Raise New Grounds on Appeal']

Case Brief

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Procedural Posture

Appeal From the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of a Tribunal Decision Affirming Refusal of a Protection Visa / Appeal Dismissed; Leave to Rely on New Grounds Refused

Legal Issues

  1. 1 ["Whether the Federal Circuit Court failed to afford the appellant a fair hearing by not considering the appellant's submissions dated 15 July 2019." 'Whether the matter should be remitted to the Federal Circuit Court or determined by the Federal Court under ss 24 and 28 of the Federal Court of Australia Act 1976 (Cth).' "Whether the Tribunal's reasons gave rise to apprehended bias or showed that it had formed a closed mind about the appellant's claims." "Whether the Tribunal failed to properly consider the appellant's claimed fear arising from UNP political affiliation and the profile of his ex-father-in-law." "Whether the Tribunal gave scant consideration to the appellant's claim based on conversion from Buddhism to Christianity." 'Whether the Tribunal failed to consider the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth).' 'Whether leave should be granted to rely on new grounds raised in submissions dated 13 February and 3 March 2020.']

Ratio Decidendi

Although the primary judge erred by failing to address the appellant's 15 July 2019 submissions, including the apprehended bias contention, this Court determined the grounds itself and found that the omission would not have affected the outcome. The Tribunal had considered the appellant's political, religious conversion and complementary protection claims, its adverse credibility findings were open and not shown to be illogical, irrational or affected by apprehended bias, and the proposed new grounds lacked merit. The appeal was therefore dismissed and leave to rely on new grounds was refused.

Court Disposition

Appeal dismissed; leave to rely on new grounds of appeal refused; appellant ordered to pay the first respondent's costs of the appeal.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal." 'Leave to rely on the new grounds of appeal raised in the submissions provided to the Court on 13 February and 3 March 2020 be refused.']