BTJ16 v Minister for Immigration and Border Protection [2019] FCA 1636

BTJ16 v Minister for Immigration and Border Protection [2019] FCA 1636

The Tribunal did not become a contradictor and did not give rise to actual or apprehended bias. It was entitled to make its own inquiries, put potentially adverse material to the appellant orally and in writing, receive written responses, and assess the credibility of the appellant's protection claims. Its adverse credibility findings and rejection of the claimed blood feud were reasonably open and logically explained on the material. The Tribunal identified and applied the correct real chance test under s 36(2)(a) and the correct real risk test under s 36(2)(aa), and its reasons had to be read fairly and as a whole. The Federal Circuit Court was therefore not in error in dismissing the...

Jurisdiction
Australia
Judgment Date
04 October 2019
Procedural Posture
Appeal From the Federal Circuit Court Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa / Appeal Dismissed
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'judicial Review' 'administrative Appeals Tribunal Review' 'procedural Fairness' 'reasonable Apprehension of Bias' 'jurisdictional Error' 'well Founded Fear of Persecution' 'complementary Protection']
['administrative Law' 'migration Law'] ['protection Visa' 'judicial Review' 'administrative Appeals Tribunal Review' 'procedural Fairness' 'reasonable Apprehension of Bias' 'jurisdictional Error' 'well Founded Fear of Persecution' 'complementary Protection']

Case Brief

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Procedural Posture

Appeal From the Federal Circuit Court Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa / Appeal Dismissed

Legal Issues

  1. 1 ['Whether the Tribunal failed to conduct a proper review under Part 7 of the Migration Act 1958 (Cth) by becoming a contradictor or giving rise to a reasonable apprehension of bias.' 'Whether the Tribunal acted within statutory procedural fairness requirements when putting adverse material and questions to the appellant during and after the hearing.' 'Whether the Tribunal was entitled to make and rely on its own inquiries and country information concerning Albanian blood feud claims and the National Reconciliation Committee.' 'Whether the Tribunal misconstrued or misapplied s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth).']

Ratio Decidendi

The Tribunal did not become a contradictor and did not give rise to actual or apprehended bias. It was entitled to make its own inquiries, put potentially adverse material to the appellant orally and in writing, receive written responses, and assess the credibility of the appellant's protection claims. Its adverse credibility findings and rejection of the claimed blood feud were reasonably open and logically explained on the material. The Tribunal identified and applied the correct real chance test under s 36(2)(a) and the correct real risk test under s 36(2)(aa), and its reasons had to be read fairly and as a whole. The Federal Circuit Court was therefore not in error in dismissing the...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of and incidental to the appeal, to be taxed if not agreed."]