BPI17 v Minister for Immigration and Border Protection (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: O'BRYAN J
• Judgment Date: 12 March 2020
• Neutral Citation: [2020] FCA 252
• Date: 12 March 2020

FEDERAL COURT OF AUSTRALIA

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

Appeal from:	BPI17 v Minister for Immigration & Anor [2019] FCCA 2657
File number:	VID 1016 of 2019
Judge:	O'BRYAN J
Date of judgment:	12 March 2020
Catchwords:	MIGRATION – appeal from Federal Circuit Court of Australia – where Tribunal affirmed decision of Minister’s delegate refusing grant of protection visa under section 65 of the Migration Act 1958 (Cth) – where primary judge failed to consider written submissions of the appellant and thereby failed to afford the appellant a fair hearing – whether matter should be remitted to the Federal Circuit Court for rehearing or should be determined by the Federal Court – where appellant’s submissions raised new grounds of appeal – whether Tribunal reasons gave rise to an apprehension of bias – whether Tribunal failed to address claims raised by appellant – appeal dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 24, 28 Migration Act 1958 (Cth)
Cases cited:	AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 ASIC v Reid (No 1) (2006) 151 FCR 540 BPI17 v Minister for Immigration and Border Protection [2019] FCA 637 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 EDI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 171 Elliott v ASIC (2004) 10 VR 369 Embertee Pty Ltd v Energy Efficient Technologies Pty Ltd (No 2) [2013] FCA 347 Foster v ACCC [2012] FCA 953 Johnson v Johnson (2000) 201 CLR 488 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 NSW v Canellis (1994) 181 CLR 309 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 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 Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZKLO v Minister for Immigration and Citizenship (2008) 102 ALD 115 SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 SZULE v Minister for Immigration and Border Protection [2019] FCA 2136 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Dates of hearing:	26 February, 5 March 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	73
Counsel for the Appellant:	The appellant appeared in person with the aid of an interpreter
Counsel for the First Respondent:	Mr N Wood
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		VID 1016 of 2019
BETWEEN:	BPI17 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	O'BRYAN J
DATE OF ORDER:	12 MARCH 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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

3. 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.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. This is an appeal from a decision of the Federal Circuit Court of Australia made on 18 September 2019 dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 3 April 2017. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

2. The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia on 12 April 2017. The application was filed pursuant to s 476 of the Act which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to assessing jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

3. On 12 February 2018, the Federal Circuit Court dismissed the application summarily pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth): BPI17 v Minister for Immigration [2018] FCCA 356. On 19 February 2018, the appellant applied to the Federal Court for leave to appeal from the Federal Circuit Court’s decision. On 8 May 2018, Charlesworth J allowed that appeal: BPI17 v Minister for Immigration and Border Protection [2019] FCA 637. Her Honour concluded that “the primary judge dismissed the application for judicial review too lightly or misapplied the test applicable on an application for summary judgment” (at [33]). Accordingly, her Honour remitted the matter to the Federal Circuit Court, differently constituted, for the hearing and determination of the application for judicial review of the Tribunal’s decision.

4. On remitter, the Federal Circuit Court was not satisfied that the appellant had demonstrated jurisdictional error and dismissed the application: BPI17 v Minister for Immigration [2019] FCCA 2657.

5. The appellant appeals from that decision of the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth). The appellant’s notice of appeal states a single ground of appeal, that the decision of the Federal Circuit Court is affected by jurisdictional error. I understand the ground to mean that the Federal Circuit Court erred in failing to find that the decision of the Tribunal is affected by jurisdictional error. Three particulars of the alleged error are given, which reproduce the particulars of jurisdictional error raised before...