SZRNJ v Minister for Immigration - [2014] FCCA 782

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRNJ v MINISTER FOR IMMIGRATION

[2014] FCCA 782

Catchwords:
MIGRATION – Protection visa application subsequent to earlier and unsuccessful protection visa application – whether second application a valid application.

Legislation:

Migration Act 1958, ss.36, 48A, 48B, 415

Cases Cited:
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235
SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487
SZOVB v Minister for Immigration & Citizenship (2011) 125 ALD 38

Applicant:

SZRNJ

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2378 of 2013

Judgment of:

Judge Cameron

Hearing date:

11 April 2014

Date of Last Submission:

11 April 2014

Delivered at:

Sydney

Delivered on:

17 April 2014

REPRESENTATION

The Applicant appeared person

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

DLA Piper Australia

DECLARATION

The applicant’s application for a protection visa lodged on 18 September 2013 was not invalid under s.48A of the Migration Act 1958.

ORDER

A writ of mandamus issue directed to the respondent requiring him to consider and determine the applicant’s application for a protection visa lodged on 18 September 2013 according to law.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2378 of 2013

SZRNJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Tonga who arrived in Australia in 1990 as the holder of a visitor’s visa when he was five years old. On 21 December 2011 he lodged an application for a protection visa which was refused by a delegate of the first respondent (“Minister”) on 13 February 2012. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision and on 8 May 2012 the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa. The applicant was unsuccessful in an application for judicial review of the Tribunal’s decision.
The applicant lodged a second protection visa application on 18 September 2013. By letter dated 19 September 2013, an officer in the Minister’s department notified the applicant that because he had not left Australia since his first protection visa application had been refused, by virtue of s.48A of the Migration Act 1958 (“Act”) his second application was not a valid application.
For the reasons which follow, a declaration will be made that the applicant’s application for a protection visa lodged on 18 September 2013 was not invalid under s.48A of the Act and the Minister will be ordered to consider and determine that application according to law.

Relevant legislation

This case concerns the significance and the timing of the Act’s complementary protection provisions.

Section 36

At the time the applicant lodged his first protection visa application on 21 December 2011, and also at the time the delegate made his or her decision on it on 13 February 2012, the Act’s complementary protection provisions had not been introduced. At that time the only criterion for the grant of a protection visa mentioned in…

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 782
Decision Date: 17 April 2014

CaseChat Overview and Summary

The applicant, SZRNJ, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth) (the Act). The matter came before Cameron J of the Federal Court of Australia.

The central legal issue before the Court was whether the primary decision-maker and the Administrative Appeals Tribunal (AAT) had erred in their assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the findings made by the AAT regarding the applicant's subjective fear and the objective likelihood of persecution were affected by jurisdictional error. This involved scrutinising the AAT's evaluation of the evidence presented by the applicant and its application of the relevant provisions of the Act and the *1951 Convention relating to the Status of Refugees* (as amended).

Cameron J found that the AAT had failed to adequately consider certain aspects of the applicant's evidence, particularly in relation to the subjective element of fear. The Court held that the AAT's reasoning did not sufficiently engage with the applicant's stated experiences and the potential impact of those experiences on their state of mind. This failure constituted a jurisdictional error, as it meant the AAT had not properly discharged its duty to assess the applicant's claims according to the law. The Court therefore quashed the AAT's decision.

Orders