SZRPL v Minister for Immigration - [2013] FCCA 363

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRPL v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 363

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – whether complementary protection criteria apply – no applicable criteria – application dismissed.

PRACTICE & PROCEDURE – Application for adjournment at commencement of final hearing on the basis that the applicant’s case was not prepared – claimed problems of availability of interpretation service that was to be provided by family member and shortage of funds – grounds for adjournment application not made out – adjournment application dismissed.

Legislation:
Evidence Act 1995 (Cth), ss.104, 106

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91X, 422B, 430, 486I

Migration Amendment (Complementary Protection) Act 2011
Federal Circuit Court Rules 2001 (Cth) r.1.03

Cases cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Minister for Immigration and Citizenship v SZMOK & Ors (2009) 257 ALR 427
Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 354
NARE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 554
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192

Applicant:

SZRPL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1409 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

11 March 2013

Delivered at:

Sydney

Delivered on:

31 May 2013

REPRESENTATION

Counsel for the Applicant:

Ms S. Haddad

Counsel for the First Respondent:

Ms R. Francois

Solicitors for the First Respondent:

Ms S. Given of Minter Ellison

The Second Respondent:

The Second Respondent filed a submitting notice of appearance

ORDERS

The Application filed on 27 June 2012 and amended on 5 November 2012 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.

The applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRPL.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1409 of 2012

SZRPL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

In accordance with the Court Orders made on 24 July 2012 made by Smith FM, the solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book…

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: [2013] FCCA 363
Decision Date: 31 May 2013

CaseChat Overview and Summary

The applicant, SZRPL, sought judicial review of a decision by the Refugee Review Tribunal (RRT) to refuse her application for a Protection (Class XA) visa. The matter came before Lloyd-Jones J in the Federal Court of Australia.

The primary legal issue before the Court was whether the RRT had made any reviewable error in its decision to refuse the visa. This involved considering whether the complementary protection criteria, as defined by the *Migration Act 1958* (Cth) and associated regulations, were applicable to the applicant's circumstances and, if so, whether the RRT had failed to properly consider them. The Court also had to determine the merits of an application for an adjournment made by the applicant at the commencement of the final hearing.

Lloyd-Jones J found that the RRT had not made any reviewable error. His Honour reasoned that the complementary protection criteria were not applicable to the applicant's case, as she did not meet the threshold requirements for their consideration. The application for an adjournment was also dismissed, as the grounds advanced by the applicant – namely, the unavailability of a family member for interpretation services and a shortage of funds – were not considered sufficient to warrant an adjournment at that late stage of proceedings.

The application for judicial review was accordingly dismissed.

Orders