CZBJ v Minister for Immigration - [2013] FCCA 23

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZBJ v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 23

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – Tribunal finding protection visa application not valid – applicant a national of two countries – application of s.91P of the Migration Act 1958 (Cth).

Legislation:
Migration Act 1958 (Cth), ss.36, 91M, 91N, 91P, 91Q
Federal Circuit Court Rules 2001 (Cth)

Cases Cited:
Minister for Immigration & Anor v SZRTC [2013] FCCA 1
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273
SZOAU v Minister for Immigration [2012] FCAFC 33; (2012) 199 FCR 408

Applicant:

CZBJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

CAG 54 of 2012

Judgment of:

Judge Driver

Hearing date:

12 March 2013

Delivered at:

Sydney, via telephone link to Canberra

Delivered on:

2 May 2013

REPRESENTATION

The Applicant’s litigation guardian appeared on behalf of the Applicant

Counsel for the Respondents:

Mr D Godwin

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 20 July 2012 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 54 of 2012

CZBJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant child (through her father as her litigation guardian) applies to review a decision of the Refugee Review Tribunal (Tribunal) made on 22 June 2012. The Tribunal set aside a decision of the Minister’s delegate refusing to grant the applicant a protection visa and substituted a decision that her protection visa application was not valid and could not be considered.
In this decision I have found that s.91P of the Migration Act 1958 (Cth) (Migration Act) prevented the applicant from making a valid protection visa application without the intervention of the Minister as she is a citizen of the United Arab Emirates (UAE) and the Philippines.
The following statement of background facts is derived from the submissions of the parties.
The applicant was born in Canberra on 6 November 2010. At that time her father, four sisters and mother had made an application for a protection visa which had been refused. Accordingly the applicant could not be part of their application as a family member and she made her own application for a protection visa on 15 September 2011. That application was refused by the Minister’s delegate on 23 February 2012. The applicant sought review by the Tribunal on 9 March 2012.

Tribunal decision

The decision of the Full Court of the Federal Court in SZOAU v Minister for Immigration[1] has established that a person is barred by s.91P of the Migration Act from making a valid application for a protection visa if they are a national of two or more countries as determined by the application of the law of those countries (ss.91N(1) and (6)). That decision was made before the commencement of amendments to the Migration Act to…

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: [2013] FCCA 23
Decision Date: 2 May 2013

CaseChat Overview and Summary

The applicant, CZBJ, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse CZBJ's application for a Protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing CZBJ's claims for protection. Specifically, the Court was asked to determine if the delegate had adequately considered the applicant's subjective fear of persecution and whether the assessment of the objective country information was flawed.

Judge Driver found that the delegate had failed to properly consider the applicant's subjective fear, particularly in relation to certain aspects of their claimed experiences. The Court held that the delegate had placed undue emphasis on some aspects of the country information while downplaying others, leading to an erroneous assessment of the real chance of persecution. The legal principle applied was that a decision-maker must give proper, rational consideration to all relevant evidence and not engage in selective or disproportionate analysis of the material before them.

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

Orders