BYE15 v Minister for Immigration and Border Protection [2016] FCA 263

FEDERAL COURT OF AUSTRALIA

BYE15 v Minister for Immigration and Border Protection [2016] FCA 263 Appeal from: BYE15 v Minister for Immigration and Border Protection [2015] FCCA 3023

File number: NSD 1463 of 2015

Judge: RARES J

Date of judgment: 9 February 2016

Catchwords: MIGRATION – appellant applied in 2009 for a protection (Class XA) visa – after Refugee Review Tribunal refused application and s 36(2)(aa) added to Migration Act 1958 (Cth) applicant alleged that his original protection (Class XA) visa application was invalid because it did not make any claim under Refugees Convention and in 2014 made new application for protection (Class XA) visa – delegate refused to accept new application pursuant to s 48A of Migration Act 1958 (Cth) – whether cl 866.211(a) of Sch 2 to the Migration Regulations 1994 (Cth) required specific claims be made under the Refugees Convention to satisfy the criterion for making a valid application Held: cl 866.211(a) did not require specific Convention ground to be identified in making an application for a protection visa – sufficient that a substantial and articulate argument based on established facts is made in Form 866C

Legislation: Convention relating to the Status of Refugees Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth)

Cases cited: AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174 BAL v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at 394 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235