BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94

FEDERAL COURT OF AUSTRALIA

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 Appeal from: BZD17 v Minister for Immigration and Border Protection [2017] FCCA 3186

File number: NSD 3 of 2018

Judges: PERRAM, PERRY AND O'CALLAGHAN JJ

Date of judgment: 25 June 2018

Catchwords: MIGRATION – where the Federal Circuit Court refused application for judicial review of Administrative Appeals Tribunal decision affirming delegate's decision not to grant the appellant a protection visa – where appellant claimed to fear harm by reason of his sexuality – where Tribunal found in effect that the appellant's credibility had been so weakened that "the well has been poisoned beyond redemption" and no weight can be given to corroborating evidence - consideration of principles governing judicial review of adverse credibility findings - whether Tribunal failed to give a proper, genuine consideration to evidence of critical witness – whether Tribunal made adverse credibility findings lacking any logical or probative basis – appeal allowed – matter remitted to the Tribunal differently constituted for determination according to law PRACTICE AND PROCEDURE – where primary judge failed to give sufficient reasons and constructively failed to exercise jurisdiction by failing to consider fundamental aspects of the appellant's case – whether the matter should be remitted to the Federal Circuit Court to determine the application for judicial review – consideration of the need to guard again erosion of the appellate structure – where compelling factors against remitting the matter to the Federal Circuit Court

Legislation: Migration Act 1958 (Cth) Federal Court of Australia Act 1976 (Cth)