SZLZS v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZLZS v MINISTER FOR IMMIGRATION

[2017] FCCA 2578

Catchwords:
MIGRATION – Application for a Protection (Class XA) – Form 866 – whether valid application for protection – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48A, 476, 477

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205

Applicant:

SZLZS

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 789 of 2017

Judgment of:

Judge Street

Hearing date:

25 October 2017

Date of Last Submission:

25 October 2017

Delivered at:

Sydney

Delivered on:

25 October 2017

REPRESENTATION

Solicitors for the Applicant:

Mr A Joel
Adrian Joel & Co

Solicitors for the Respondent:

Mr A Markus
Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs fixed in the amount of $2,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 789 of 2017

SZLZS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of an Officer of the Department of Immigration and Border Protection made on 22 February 2017 to the effect that an application for a protection visa lodged on behalf of the applicant on 20 February 2017 was not a valid application by virtue of s 48A of the Act.
The application for review was filed on 16 March 2017 within the time permitted under s 477(1) of the Act. The substantive issue raised by the applicant in the present case is relevantly identical to issues raised in a number of proceedings in this Court, to date all of which have been determined to the effect that the Form 866 is not on the proper construction of the Migration Regulations 1994 (Cth), frozen as at 20 October 1999, and/or that there has been substantial compliance with the requirements of the Act in relation to the application.
The arguments have been dismissed by decision of the learned Burley J in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205. That decision is binding on this Court and accordingly, the application cannot succeed. The Court notes that if there are future applications of this kind they should be the subject of an interlocutory application for summary dismissal, and/or an application under r 44.12 of the Federal Circuit Court Rules 2001 for dismissal insofar as this Court is concerned. Accordingly, the application is not one that is capable of making out relevant jurisdictional error in respect of the non-reviewable decision that would be within this Court’s jurisdiction if jurisdictional error was established.
The application is accordingly dismissed.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 8 November 2017

CaseChat Overview and Summary

The applicant, SZLZS, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who is a citizen of Afghanistan, claimed to fear persecution upon return to Afghanistan due to his alleged involvement with a political organisation that opposed the Taliban. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he would not be at risk of persecution. The matter came before Street J in the Federal Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims of fear of persecution, particularly in light of the evidence presented regarding the political organisation and the prevailing security situation in Afghanistan. The applicant argued that the delegate had made findings of fact that were not supported by the evidence and had failed to adequately assess the risk of harm.

Street J found that the delegate had made a jurisdictional error by failing to properly assess the applicant's claims. The Court held that the delegate had not adequately considered the evidence relating to the applicant's alleged membership in the political organisation and the potential consequences of such membership in Afghanistan. The delegate's adverse credibility findings were found to be based on an incomplete and flawed assessment of the evidence. Consequently, the Court concluded that the delegate had failed to undertake the necessary assessment of the real chance of persecution, a failure that vitiated the decision.

The Court made orders setting aside the delegate's decision and remitting the application for a protection visa to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established