BZAED v Minister for Immigration - [2014] FCCA 1531

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAED v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1531

Catchwords:
MIGRATION – Whether tribunal applied correct test to consideration of claim for complementary protection – whether tribunal decision affected by “illogicality” – matters of “credit” of applicant – no error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.36, 36(2A), 36(2)(aa), 46A(2), 65, 91R(2)(a), 91R(2)(b), 424A, 474

Applicant WAEE v MIMIA (2003) 75 ALD 630
Dranichnikov v MIMIA (2003) 77 ALJR 1088
Li v Minister for Immigration & Anor [2010] FMCA 583
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 455
MIAC v SZMDS (2010) 240 CLR 11
MIAC v SZMOK (2009) 257 ALR 427
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Eshetu (1999) 197 CLR 611
Re Drake and Minister for Immigration (No.2) [1979] ALD 634
Re MIMA; ex parte Durairajasingham (2000) 68 ALR 407
SZOOR v MIAC (2012) 102 FCR 1
VAAD v MIMIA [2005] FCAFC 117

Applicant:

BZAED

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 443 of 2013

Judgment of:

Judge Jarrett

Hearing date:

26 November 2013

Date of Last Submission:

26 November 2013

Delivered at:

Brisbane

Delivered on:

17 July 2014

REPRESENTATION

Counsel for the Applicant:

The Hon. Mr Wells

Solicitors for the Applicant:

Refugee and Immigration Legal Service

Counsel for the First Respondent:

Mr Reilly

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

The amended application filed on 12 August, 2013 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,466.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 443 of 2013

BZAED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of a refugee review tribunal made on 30 April, 2013 which affirmed a decision of a delegate of the first respondent to refuse the applicant a protection visa.
The applicant’s amended application contains seven grounds of review, but grounds five and seven are no longer pressed. The remaining five grounds were pressed in argument before me.
According to the applicant’s written submissions, the key issue in this application is whether the tribunal erred in law when it determined that there was no real risk that the applicant would suffer 99 lashes if she was returned to Iran. The applicant argues, amongst other matters, that the tribunal ought to have determined that she was entitled to the benefit of complementary protection under s.36(2)(aa) of the Migration Act1958 because serious harm, namely 99 lashes, would befall her if she returned to Iran.
She seeks the issue of constitutional writs with effect that the tribunal’s order is set aside and her application remitted to another tribunal for determination according to law.

Background

The applicant is a citizen of Iran…

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: [2014] FCCA 1531
Decision Date: 17 July 2014

CaseChat Overview and Summary

The applicant, BZAED, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth) (the Act). The matter came before Judge Jarrett of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision, which affirmed the Minister's refusal, had failed to adequately consider the applicant's claims of past persecution and the real chance of future persecution should they be returned to their country of origin. Specifically, the Court was required to determine if the delegate's assessment of the evidence, particularly concerning the applicant's alleged experiences and the general country information, was reasonable and complied with the relevant provisions of the *Migration Act* and the *Migration Regulations 1994* (Cth).

Judge Jarrett found that the delegate's assessment of the applicant's claims was flawed. The Court held that the delegate had not adequately grappled with the cumulative impact of the applicant's experiences, nor had they sufficiently considered the potential for future harm in light of the country information. The reasoning applied was that a proper assessment of a protection visa claim requires a holistic and nuanced consideration of all presented evidence, including the subjective fear of the applicant and objective country conditions, to determine if there is a real chance of persecution. The delegate's failure to do so meant the decision was not open to be affirmed.

The Court ordered that the decision of the delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders