SZROL v Minister for Immigration - [2020] FCCA 2466

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZROL v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2466

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the Applicant a Protection (Class XA) (Subclass 866) visa – Applicant claimed that in finding inconsistencies in his evidence the Tribunal did not take into account the period of time over which the Applicant gave his evidence and wrongly relied on the Decision Records of the Delegate and previously constituted Tribunals instead of a reading a transcript or listening to a recording of the Applicant’s evidence given at the hearings before them – Tribunal entitled to take into account inconsistencies, to use the Decision Records in the way that it did, to take into account the delay in the Applicant’s lodging of a Protection visa and was not irrational or unreasonable in considering the Applicant as part of the particular social group that it did – jurisdictional error not made out – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 424A

Administrative Appeals Tribunal Act 1975 (Cth), s.19D

Evidence Act 1995 (Cth), s.43

Cases cited:

AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205

AWA15 v Minister for Immigration and Border Protection [2018] FCA 604

Waterford v The Commonwealth of Australia (1987) 163 CLR 54

Applicant:

SZROL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 4040 of 2017

Judgment of:

Judge Dowdy

Hearing date:

18 September 2019

Date of Last Submission:

15 October 2019

Date Reserved:

16 October 2019

Delivered at:

Sydney

Delivered on:

9 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr J. R. Young of Counsel

Solicitors for the Applicant:

Shamser Thapa & Associates

Counsel for the First Respondent:

Mr P. Knowles of Counsel

Solicitors for the First Respondent:

Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 28 December 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 4040 of 2017

SZROL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS…

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: [2020] FCCA 2466
Decision Date: 9 September 2020

CaseChat Overview and Summary

The applicant, SZROL, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Delegate of the Minister for Immigration's refusal to grant a Protection (Class XA) (Subclass 866) visa. The applicant contended that the AAT erred in its assessment of his evidence, particularly concerning alleged inconsistencies.

The central legal issues before the court were whether the AAT committed jurisdictional error by failing to adequately consider the time elapsed during the applicant's evidence, by improperly relying on the Delegate's and previous Tribunals' decision records instead of a transcript or recording of the applicant's testimony, and by irrationally or unreasonably categorising the applicant as part of a particular social group. The court was also required to determine if the AAT was entitled to consider the delay in the applicant lodging his protection visa application.

Dowdy J found that the AAT was entitled to take into account inconsistencies in the applicant's evidence, and that its use of the Decision Records was permissible. The court also held that the AAT was entitled to consider the delay in the applicant's visa application and was not irrational or unreasonable in its assessment of the applicant as part of the particular social group in question. Consequently, the court concluded that no jurisdictional error had been made out.

The application for judicial review was dismissed.

Orders