SZROZ v Minister for Immigration

[2015] FCCA 1851

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZROZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1851

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (Class XA) visa – where previous findings made by a differently constituted Tribunal – where the Tribunal failed to engage in an independent assessment of the applicant’s credibility – application allowed. 

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 414, 424A, 476

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35

Applicant: SZROZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 981 of 2015

Judgment of: Judge Street

Hearing date: 3 July 2015

Date of Last Submission: 3 July 2015

Delivered at: Sydney

Delivered on: 3 July 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr D. Hughes

Solicitors for the Respondents: DLA Piper

ORDERS

1. A writ of certiorari issue removing the record of the Refugee Review Tribunal decision made on 5 March 2015 into this Court for the purpose of quashing it.

2. A writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the review application before it according to law.

3. The first respondent pay the applicant’s costs fixed in the sum of $545.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 981 of 2015

SZROZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 5 March 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.  The application is one in which the applicant, a citizen of India, had earlier unsuccessfully applied for protection but the issue of complementary protection had not been addressed. 

2. Consistent with the Full Court’s decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35, the applicant was entitled to have his claim under complementary protection provisions in s.36(2)(aa) of the Act considered. In accordance with the requirements of the Act, the obligation of the Tribunal was to conduct a review consistent with what was said by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [32] as follows:

   32. The Tribunal's task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.

3. In this case, the Tribunal identified that the delegate and the first Tribunal had originally rejected the applicant’s protection visa application under the Convention for reasons “of comprehensive credibility problems”. The Tribunal identified that there had been no new facts raised in the fresh protection application in respect of s.36(2)(aa) of the Act and said, in relation to the applicant’s claim for complementary protection, the:

   10. …The applicant raised no significant new facts in his fresh protection visa application but, rather, summarised claims that had already been rejected for lack of credibility.

4. The Tribunal did not engage in any assessment of the applicant’s credibility or identify any new basis upon which it independently made adverse findings, but rather expressed the conclusion as follows:

   11. In the circumstances, the Tribunal is not satisfied, on the evidence before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.

5. The first respondent accepts that this was a failure by the Tribunal to conduct a review consistent with the obligation under s.414 of the Act.

6. The first respondent also submitted that, in the circumstances where the information was to be used in the manner engaged in by the Tribunal in this case, s.424A of the Act applied and that there was a failure to comply with that provision. It is not necessary for the Court to determine the issue relating to s.424A of the Act as it is clearly the position that it is appropriate to make the consent orders in light of the jurisdictional error arising from the failure to conduct a review consistent with the obligation under s.414 of the Act.

7. For these reasons, there will be a writ of certiorari and a writ of mandamus.  I note that the application goes further and seeks an order of prohibition to restrain the first respondent from giving any further effect to the purported decision.  There is no utility in granting any such relief as the order quashing the decision and remitting the matter for determination according to law adequately protects the applicant in respect of the decision of the Tribunal which has been found to be the subject of a jurisdictional error. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 8 July 2015