SZDCD v Minister for Immigration - [2018] FCCA 1029

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZDCD v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1029

Catchwords:
MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – Applicant from Bangladesh – Applicant assessed under complementary protection criteria and Refugees Convention criteria – whether Tribunal correctly considered complementary protection – whether it was open for Tribunal to draw conclusions regarding Applicant’s documents – whether weighing exercise was rational and logical – whether Tribunal correctly applied test of “significant harm” in s.36(2A) – whether there was a real risk of the Applicant being arbitrarily deprived of his life due to unavailability of treatment for heart problems.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2), 36(2A), 65, 476

Migration Regulations 1994 (Cth)

Cases cited:

Applicant:

SZDCD

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 645 of 2016

Judgment of:

Judge Baird

Hearing dates:

9 April 2018, 18 April 2018

Date of Last Submission:

18 April 2018

Delivered at:

Sydney

Delivered on:

18 April 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent:

Mr M Wiese of Clayton Utz

ORDERS

THE COURT ORDERS THAT:

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 645 of 2016

SZDCD

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

This is an application pursuant to s.476 of the Migration Act (1958) (Cth) for judicial review of a decision of the Administrative Appeals Tribunal, dated 25 February 2016. The Tribunal affirmed a decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection, dated 5 August 2014. The Delegate refused to grant a protection (Class XA) Visa to the Applicant.
The Applicant is a citizen of Bangladesh. He was born in January 1971. He first arrived in Australia, in Fremantle, in July 1999, having jumped ship. The Applicant first applied for a protection visa on 31 August 1999. That application, containing no claims, was found to be invalid. On 20 July 2000, the Applicant made a second application for a protection visa. That application was refused by a delegate of the Minister on 22 August 2000. That decision was affirmed by the Refugee Review Tribunal on 21 August 2002. The Applicant unsuccessfully sought judicial review of that decision: see SZDCD…

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: [2018] FCCA 1029
Decision Date: 18 April 2018

CaseChat Overview and Summary

The applicant, SZDCD, 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 the Minister's assessment of the applicant's claims for protection, specifically whether the applicant would face a real chance of persecution or harm if returned to their country of origin. 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 in their assessment of the applicant's claims. This involved determining whether the delegate had failed to consider relevant evidence, had taken into account irrelevant considerations, or had otherwise misapplied the relevant legal tests for assessing claims for protection under Australian migration law. The Court was required to scrutinise the delegate's findings in relation to the applicant's fear of persecution and the likelihood of harm.

Judge Baird found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's evidence regarding past persecution and the specific circumstances of their fear. The Court held that the delegate's assessment was based on an incomplete and flawed understanding of the evidence presented, leading to an unreasonable conclusion. Consequently, the Court quashed the decision of the Minister.

Orders