SZDCV v Minister for Immigration - [2016] FCCA 3264

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZDCV v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3264

Catchwords:
MIGRATION – Migration Act1958 (Cth) – application for protection visa based on complementary protection criteria – judicial review of Tribunal decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 65, 417, 476

Cases cited:

CLI15 v Minister for Immigration [2016] FCA 1223
Minister for Immigration v SZVCH [2016] FCAFC 127

SZGIZ v Minister for Immigration (2013) 212 FCR 235

Applicant:

SZDCV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 276 of 2016

Judgment of:

Judge Dowdy

Hearing date:

30 May 2016

Date of Last Submission:

30 May 2016

Delivered at:

Sydney

Delivered on:

21 December 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Ms L Buchanan.

Solicitors for the Respondents:

Australian Government Solicitor.

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The application filed in this Court on 10 February 2016 is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 276 of 2016

SZDCV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a female citizen of Indonesia aged 55 years, having been born on 22 November 1961 in Medan, Indonesia.
By application filed in this Court on 10 February 2016 she seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 19 January 2016 affirming a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 25 September 2014 refusing to grant the Applicant a Protection (Class XA) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (Act).

Background

The Applicant arrived in Australia on 3 January 1997 on a Tourist (Subclass 676) visa and has remained in Australia since that date.
On 27 March 1997 she lodged an application for a Protection visa which was refused by a Delegate on 7 April 1997 and this refusal was affirmed on review by the Refugee Review Tribunal (RRT) on 11 August 1998, but upon judicial review this decision was set aside and the Applicant’s Protection visa application was remitted to the RRT for redetermination.
However, on 18 February 2004 the RRT again affirmed the decision of the Delegate not to grant the Applicant a Protection visa.
The Applicant then sought unsuccessful judicial review of this second RRT decision and subsequently on 26 July 2010 made a request that the Minister substitute a more favourable decision on her behalf under s.417 of the Act, but on 6 August 2010 the Minister decided not to consider that request.
Thereafter, following the decision of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration (2013) 212 FCR 235 (SZGIZ), the Applicant on 25 September 2013 made…

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: [2016] FCCA 3264
Decision Date: 21 December 2016

CaseChat Overview and Summary

The applicant, SZDCV, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant, who is a citizen of Iran, had arrived in Australia by boat in 2013 and was subsequently placed in immigration detention. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa, specifically concerning the assessment of his claims for protection.

The central legal issue before the Federal Court was whether the Minister's decision was affected by jurisdictional error. This involved examining whether the delegate of the Minister, in assessing the applicant's claims, had failed to consider relevant evidence or had taken into account irrelevant considerations, thereby vitiating the decision-making process. The applicant argued that the delegate had not properly considered his claims of persecution in Iran, particularly in relation to his alleged political opinions and the risk of harm he faced upon return.

Dowdy J found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding his fear of persecution. Specifically, the delegate's assessment of the applicant's claims about his political activities and the potential consequences thereof was found to be superficial and lacking in proper engagement with the detailed information provided. The Court held that this failure constituted a jurisdictional error, as it meant the delegate had not undertaken the necessary assessment required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Consequently, the Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders