ABZ15 v Minister for Immigration - [2015] FCCA 817

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABZ15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 817

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958, ss.36(2)(a), 36(2)(aa), 91R(1), 476

Paramananthan v Minister of Immigration and Cultural Affairs (1998) 94 FCR 28; [1998] FCA 1693,
Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant:

ABZ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 499 of 2015

Judgment of:

Judge Street

Hearing date:

2 April 2015

Date of Last Submission:

2 April 2015

Delivered at:

Sydney

Delivered on:

2 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Respondent:

Ms S. Lloyd

Minter Ellison

ORDERS

Proceedings be summarily dismissed.
Applicant pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 499 of 2015

ABZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application in the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of the decision of the Tribunal made on 13 February 2015 affirming a decision of the delegate not to grant the applicant a Protection visa. The grounds of the application are as follows:
Ground 1
The Tribunal erred when assessing the claims as the Tribunal misapprehended and misdirected enquiries (RRT at [72] - [74]; (82]) in relation to the Applicant claim as Tamil and thereby committed jurisdictional error.
Particulars
(i) The Tribunal accepted that the Applicant was a Tamil and accepted that the Applicant was a police clerk for a period of time prior to arrival in Australia.
(ii) In assessing of the claims, the Tribunal failed to consider the impact of the Applicant being Tamil police clerk – erroneously assessing that the Police Clerk were not in the UNHCR guidelines the Applicant did not require protection.
(iii) The Tribunal thereby committed jurisdictional error.
Ground 2
The Tribunal erred when assessing the complementary protection in that it asked itself the wrong questions I applied the wrong tests I misdirected enquiries in that short time detention would not amount to harm for the purposes of complementary protection under s 36(2)(aa).
Particulars
(i) The Tribunal accepted that the Applicant would be held in custody pending determination of bail (RRT dec at [para [89] - [90]) in harsh conditions.
(ii) Short detention for illegal departure is not the correct test under s 36(2)(aa).
(iii) The Tribunal fell into error making qualitative assessment.
(iv) The Tribunal committed jurisdictional…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 817
Decision Date: 2 April 2015

CaseChat Overview and Summary

The applicant, ABZ15, sought judicial review of a decision by the Refugee Review Tribunal (RRT) concerning their application for a Protection (class XA) visa. The Minister for Immigration was the respondent. The proceedings were before the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the RRT had committed a jurisdictional error in its assessment of ABZ15's claim for complementary protection. The applicant contended that the RRT's decision was vitiated by such an error, thereby warranting judicial review.

Judge Street found that the RRT had properly considered the evidence before it and applied the relevant legal principles in assessing the applicant's claim for complementary protection. The Court concluded that no jurisdictional error had occurred and that the RRT's decision was open to it on the evidence. Consequently, the Court ordered that the proceedings be summarily dismissed.

Orders