SZREM v Minister for Immigration - [2014] FCCA 129

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZREM & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 129

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal erred in its consideration or application of s.91R(3) of the Migration Act 1958 – whether the Tribunal failed to consider an integer of the Applicants’ claims to fear persecution for reason of their religion.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 425

Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135; [2000] HCA 5
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802

Lee and Others v Minister for Immigration and Citizenship and Another (2007) 159 FCR 181; [2007] FCAFC 62

Minister for Immigration and Citizenship v SZJGV and Another; Minister for Immigration and Citizenship v SZJXO and Another (2009) 238 CLR 642; [2009] HCA 40
Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Citizenship v SZRKT and Another (2013) 212 FCR 99; [2013] FCA 317

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1

Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZLWI v Minister for Immigration and Citizenship and Another (2008) 171 FCR 134; [2008] FCA 1330
SZNCT & SZNCU v Minister for Immigration & Anor [2009] FMCA 233
SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58
SZRSA v Minister for Immigration & Anor [2012] FMCA 1187
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

First Applicant:

SZREM

Second Applicant:

SZREN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 481 of 2013

Judgment of:

Judge Barnes

Hearing dates:

6 August 2013 and 24 September 2013

Date of Last Submission:

15 October 2013

Delivered at:

Sydney

Delivered on:

30 January 2014

REPRESENTATION

Applicants:

In person through their mother as litigation guardian

Counsel for the Respondents:

Ms Graycar

Solicitors for the Respondents:

Minter Ellison

ORDERS

A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 14…

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: [2014] FCCA 129
Decision Date: 30 January 2014

CaseChat Overview and Summary

In the Federal Court of Australia, SZREM (the applicant) sought judicial review of a decision made by the Refugee Review Tribunal (the second respondent). The dispute concerned the Tribunal's assessment of the applicant's claims for protection, specifically relating to fears of persecution based on religion. The applicant contended that the Tribunal had erred in its consideration and application of section 91R(3) of the *Migration Act 1958* (Cth) and had failed to adequately consider a crucial element of their claims.

The primary legal issues before the Court were whether the Refugee Review Tribunal had made an error of law in its assessment of the applicant's claims. This involved determining whether the Tribunal had correctly considered and applied the provisions of section 91R(3) of the *Migration Act 1958* and whether it had failed to give proper consideration to an integer of the applicant's asserted fear of persecution due to their religion.

Justice Barnes found that the Tribunal had indeed erred in law. The Court reasoned that the Tribunal's decision did not adequately address all aspects of the applicant's claims, particularly concerning the religious persecution element. Consequently, the Court ordered that a writ of certiorari issue to quash the Tribunal's decision of 14 February 2013. Furthermore, a writ of mandamus was ordered, directing the Tribunal to determine the applicant's review application according to law.

Orders

Orders of the court

1. A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 14 February 2013 in Tribunal case number 1212632.

2. A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 3 May 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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