BFH16 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judgment Date: 31 March 2020
• Neutral Citation: [2020] FCAFC 54
• Date: 31 March 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54

Appeal from:	BFH16 v Minister for Home Affairs [2019] FCCA 730 and BFI16 v Minister for Home Affairs [2019] FCCA 731
File numbers:	VID 403 of 2019 VID 407 of 2019
Judges:	MURPHY, O'BRYAN AND SNADEN JJ
Date of judgment:	31 March 2020
Catchwords:	MIGRATION – refugees – protection visa – refusal to grant protection visa under section 65 of Migration Act 1958 (Cth) - Administrative Appeals Tribunal – review by Tribunal under Pt 7 of Migration Act 1958 (Cth) – appeal from Federal Circuit Court of Australia – applicants’ claim for protection grounded on claim to be member of particular social group, being homosexuals in Pakistan – appeals allowed – matters remitted to the Administrative Appeals Tribunal ; ADMINISTRATIVE LAW – administrative law – judicial review – jurisdictional error – whether decision by Tribunal unreasonable, irrational or illogical – whether certain factual findings made by the Tribunal lacked an evident and intelligible justification or the reasoning was not open on the evidence or lacked a logical connection between the evidence and the conclusions drawn – applicable principles – whether evidence of particular facts rationally probative of a fact in issue – materiality of reasoning in error – writ of certiorari issued – writ of mandamus issued
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth) Migration Act 1958 (Cth)
Cases cited:	ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 BFH16 v Minister for Home Affairs [2019] FCCA 730 BFI16 v Minister for Home Affairs [2019] FCCA 731 BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260 EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 Goldsmith v Sandilands (2002) 190 ALR 370 Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 Harrington-Smith v Western Australia (No 7) (2003) 130 FCR 424 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Date of hearing:	27 February 2020
Date of last submissions:	20 February 2020
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	71
Counsel for the Appellants:	Ms E Latif
Solicitor for the Appellants	Carina Ford Immigration Lawyers
Counsel for the First Respondent:	Mr N Wood
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		VID 403 of 2019
BETWEEN:	BFH16 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGEs:	MURPHY, O’BRYAN AND SNADEN JJ
DATE OF ORDER:	31 march 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 29 March 2019 be set aside and, in lieu thereof, the following orders be made:

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 29 April 2016 (case number 1417176).

2. A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application made to it by the appellant for review of the decision of a delegate of the first respondent made on 1 October 2014 under s 65 of the Migration Act 1958 (Cth).

3. Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 1 April 2019 be set aside and, in lieu thereof, the following order be made:

The first respondent pay the appellant’s costs of the Federal Circuit Court proceeding.

4. The first respondent pay the appellant’s costs of the appeal.

5. The name of the first respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		VID 407 of 2019
BETWEEN:	BFI16 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGEs:	murphy, o’bryan and snaden jj
DATE OF ORDER:	31 march 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 29 March 2019 be set aside and, in lieu thereof, the following orders be made:

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 29 April 2016 (case number 1417175).

2. A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application made to it by the appellant for review of the decision of a delegate of the first respondent made on 1 October 2014 under s 65 of the Migration Act 1958 (Cth).

3. Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 1 April 2019 be set aside and, in lieu thereof, the following order be made:

The first respondent pay the appellant’s costs of the Federal Circuit Court proceeding.

4. The first respondent pay the appellant’s costs of the appeal.

5. The name of the first respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY AND O’BRYAN JJ:

Introduction

1. The appellants, designated BFH16 and BFI16 to keep their identity confidential, appeal from orders made by the Federal Circuit Court of Australia on 29 March 2019, dismissing applications for judicial review of decisions of the Administrative Appeals Tribunal (Tribunal) made on 29 April 2016. The Tribunal had affirmed decisions of a...