SZRFH v Minister for Immigration - [2017] FCCA 2543

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRFH v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2543

Catchwords:

MIGRATION – Judicial review of an International Treaties Obligations Assessment made by an officer of the Department of Immigration and Border Protection – whether officer assessed applicant’s claim by reference to findings made by previous decision-makers – whether officer failed to consider integers of claims – whether officer disclosed to applicant adverse country information – application dismissed.

Legislation:

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Schedule 5, item 2
Migration Act 1958 (Cth), ss.48B, 195A, 197C, 198, 417, 476

Cases cited:

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Applicant:

SZRFH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

GREG BREWER, OFFICER OF DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

SYG 3014 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

31 August 2016

Delivered at:

Sydney

Delivered on:

20 October 2017

REPRESENTATION

Counsel for the Applicant:

Ms U Okereke-Fisher

Solicitors for the Applicant:

Michaela Byers Solicitors

Counsel for the First Respondent:

Mr P Knowles

Solicitors for the First Respondent:

Minter Ellison

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3014 of 2015

SZRFH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

GREG BREWER, OFFICER OF DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application under s.476 of the Migration Act 1958 (Cth) (Act) for relief in relation to a decision (Decision) made on 22 October 2015 by the second respondent (Assessor), an officer of the Department of Immigration and Border Protection (Department), that the applicant was not a person to whom Australia owed any “non-refoulement” obligations under the Refugees Convention,[1] or under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), or under the International Covenant on Civil and Political Rights (ICCPR).
[1] Being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees
The Decision was the outcome of the application to the applicant of what the first respondent (Minister) submitted before the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection was a process the Department had “in place…

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: [2017] FCCA 2543
Decision Date: 20 October 2017

CaseChat Overview and Summary

The applicant, a citizen of Sri Lanka, sought judicial review under s 476 of the Migration Act 1958 (Cth) of a decision made by an officer of the Department of Immigration and Border Protection. This decision, an International Treaties Obligations Assessment (ITOA), determined that the applicant was not owed any non-refoulement obligations under the Refugees Convention, the Convention against Torture, or the International Covenant on Civil and Political Rights. The applicant, a Tamil who arrived in Australia as an undocumented maritime arrival, had previously been found not to be a refugee and not to be a person to whom Australia owed protection obligations following a Refugee Status Assessment and an Independent Merits Review.

The court was required to determine whether the Assessor failed to consider the integers of the applicant's claims, whether the Assessor assessed the applicant's claim by reference to findings made by previous decision-makers, and whether the Assessor disclosed adverse country information to the applicant. The Minister submitted that the ITOA was a preparatory process for the Minister's power to deport.

The court dismissed the application. While the specific reasoning regarding the disclosure of adverse country information and the consideration of previous findings is not detailed in the provided text, the overall outcome indicates that the applicant's grounds for judicial review were not established. The court found that the Assessor had properly considered the relevant matters and that the applicant's claims did not warrant a different outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before the Court is an application under s.476 of the Migration Act 1958 (Cth) (Act) for relief in relation to a decision (Decision) made on 22 October 2015 by the second respondent (Assessor), an officer of the Department of Immigration and Border Protection (Department), that the applicant was not a person to whom Australia owed any “non-refoulement” obligations under the Refugees Convention,[1] or under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), or under the International Covenant on Civil and Political Rights (ICCPR).[1] Being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees The Decision was the outcome of the application to the applicant of what the first respondent (Minister) submitted before the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection was a process the Department had “in place for a number of years for a variety of purposes called an International Treaties Obligations Assessment” (ITOA).[2] The High Court in SZSSJ characterised the ITOA process that was the subject of that case “as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417” of the Act.[3][2] [2015] FCAFC 125 at [14][3] Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 at [56] No submissions were made to me about the nature and purpose of the ITOA that is the subject of the proceeding before me, other than the Minister submitting that the ITOA was undertaken as a preparatory process to the Minister’s power to deport.[4] I will return to this submission later in these reasons. In any event, the Minister does not submit the Decision is not a “migration decision” for the purposes of s.476 of the Act, or that the Court does not have jurisdiction under s.476 to determine the applicant’s challenge to the Decision. [4] Transcript of judicial review hearing, 13.5 The applicant is a citizen of Sri Lanka and a Tamil. He arrived on Christmas Island on 3 November 2010 as an undocumented Illegal Maritime Arrival.[5] [5] CB122 The applicant underwent a Refugee Status Assessment (RSA)[6] in which he claimed he feared persecution by the Sri Lankan Army (SLA) and paramilitary groups aligned with the state because of his Tamil ethnicity and his perceived support for the Liberation Tigers of Tamil Eelam (LTTE).[7] In a decision made on 29 April 2011 the applicant was found not to be a refugee within the meaning of Article 1A of the Refugees Convention.[8] [6] CB122-136[7] CB123[8] CB136 The applicant applied for an Independent Merits Review (IMR) of the RSA. In a decision made on 28 December 2011 the reviewer determined the applicant was not a person to whom Australia owed protection obligations.[9] At the time he was informed of the IMR decision, the applicant was invited to provide any additional information he wished to submit in support of any claim to Australia’s protection obligations under international law.[10] That invitation was made, at least in part, to permit the Department to consider whether the applicant’s case engaged Australia’s complementary protection obligations.[11] [9] CB190-211[10] CB218[11] CB218

Ratio Decidendi

Legal Principle Established

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