SZMOX v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZMOX v MINISTER FOR IMMIGRATION

[2018] FCCA 533

Catchwords:
MIGRATION – Judicial review of rejection by officer of Department of Immigration and Border Protection of application for protection visa on the ground the applicant had previously been refused the grant of a protection visa – whether previous application for a protection visa was not a valid application for a protection visa because of the form by which it was made - application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48A, 48B

Applicant:

SZMOX

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 1519 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

11 August 2017

Date of Last Submission:

11 August 2017

Delivered at:

Sydney

Delivered on:

9 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Adrian Joel & Co

Solicitors for the Respondent:

Mr A Markus of Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1519 of 2016

SZMOX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This application for judicial review, which was heard together with SZMOY v Minister for Immigration and Border Protection,[1] is directed to the rejection by an officer of the Department of Immigration and Border Protection of the lodgement on behalf of the applicant on 24 May 2016 of an application for a protection visa. The officer rejected the application by letter dated 1 June 2016.
[1] [2018] FCCA 532
The officer stated that the application was not a valid application for a protection visa because a decision had previously been made to refuse the applicant a protection visa and, in those circumstances, s.48A of the Migration Act 1958 (Cth) (Act) prevents the applicant from making a further application for a protection visa unless, acting under s.48B of the Act, the Minister for Immigration and Border Protection determines s.48A does not apply.
In his application for judicial review, the applicant claims the officer was wrong to reject the application for a protection visa because the application for a protection visa which the applicant had previously lodged on 11 March 2014, and which had been rejected, was itself not a valid application for a visa. The ground on which the applicant claims the previous application for a protection visa was not a valid application for a protection visa is that the only valid form the applicant could have used to make an application was Form 866 as it existed as at 20 October 1999; but the applicant used a different version of Form 866 which the Minister had purportedly approved after 1999.
The submissions in support of this ground are extensive. It is unnecessary, however, for me to set out these submissions or consider them because submissions to the same effect have been considered and rejected, not only by judges of this Court, but also by Burley J in the Federal Court.[2] Given the judgments of Burley J, the application is bound to fail.
[2] See, for example, BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205; BLR15 v Minister for Immigration and Border Protection [2018] FCA 67; CNP16 v Minister for Immigration and Border Protection [2018] FCA 65 ; CDI15 v Minister for Immigration and Border Protection [2018] FCA 58
I propose, therefore, to order that the application be dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 March 2018

CaseChat Overview and Summary

SZMOX (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Iran, claimed to fear persecution on the basis of his imputed political opinion and membership of a particular social group. The delegate of the Minister 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 if returned to Iran. The applicant then applied to the Federal Circuit and Family Court of Australia for judicial review of this decision.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess the evidence relating to his claims of imputed political opinion and membership of a particular social group. The applicant contended that the delegate's adverse credibility findings were not open on the evidence and that the delegate had failed to engage with the substance of his claims, thereby failing to undertake the assessment required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Manousaridis found that the delegate had indeed made jurisdictional error. The Court held that the delegate's reasons for decision did not adequately explain how the applicant's evidence was assessed or why it was found to be not credible. The delegate's findings were characterised as conclusory and lacking in detailed analysis, failing to grapple with the specific factual matrix presented by the applicant. The Court reiterated the principle that a delegate must provide reasons that are sufficient to enable a court to understand the basis of the decision and to allow the applicant to understand why their claims were rejected. The delegate's failure to provide such reasons constituted a failure to undertake the required assessment, leading to jurisdictional error.

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