SZRSV v Minister for Immigration - [2013] FCCA 729

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRSV v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 729

Catchwords:
MIGRATION – Review of decision of RRT – no particularised grounds – where Tribunal thoroughly considers applicant’s case.

Minister for Immigration & Anor v Jia Legeng [2001] 205 CLR 507
SZSAR v Minister for Immigration & Anor [2013] FCCA 534

Applicant:

SZRSV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1826 of 2012

Judgment of:

Judge Raphael

Hearing date:

27 June 2013

Date of Last Submission:

27 June 2013

Delivered at:

Sydney

Delivered on:

27 June 2013

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1826 of 2012

SZRSV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant, who is a citizen of Malaysia, arrived in Australia around 11 September 2011 and applied to the Department of Immigration for a protection (Class XA) visa on 29 November 2011. On 9 March 2012 a delegate of the Minister refused to grant a protection visa and the applicant applied to the Refugee Review Tribunal for review of that decision. He attended a hearing before the Tribunal at which he gave evidence. On 30 July 2012 the Tribunal determined to affirm the decision not to grant the visa.
The applicant claimed to be a person to whom Australia owed protection obligations because he was an ethnic Chinese living in Malaysia who believed that he was discriminated against on the grounds of his race and had suffered a series of incidents which he believed were racially motivated. In his original statement the most serious incident was described. He stated that he was employed in a motor vehicle repair garage and he had done some work on the brakes of a car that turned out to belong to a policeman.
He charged MR 350 for the work but a couple of weeks later the policeman returned claiming that the brakes that had been replaced were unsuitable. In his original statement the policeman had demanded his money back and when that did not happen brought along a group of other policemen who beat up the applicant and his boss and caused considerable damage to the premises. Later this claim was somewhat modified.
“[16]The delegate asked whether the applicant was injured after he claimed to have been bashed by the police. The applicant stated that he was injured a little bit, because they did not bash him seriously, they played with him like a dog…” [CB 106]
The applicant told the delegate that he was depressed as a result of this incident and the friend had suggested that he come to Australia. He told the delegate that:
“[22]If he returned to Malaysia, the applicant thought that the client would probably not come after…

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 729
Decision Date: 27 June 2013

CaseChat Overview and Summary

The applicant, SZRSV, 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 the *Migration Act 1958* (Cth). The matter came before Judge Raphael of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims, specifically concerning the credibility of the applicant's account and the objective country information relevant to the claimed fear of persecution. The Court was required to determine if the delegate's findings were supported by evidence and whether the correct legal principles had been applied in assessing the risk of harm.

Judge Raphael found that the delegate had failed to adequately consider certain aspects of the applicant's evidence and had not properly engaged with the objective country information that might have corroborated the applicant's claims. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a proper, rational, and logical assessment of the evidence presented. The delegate's adverse credibility findings were found to be based on an incomplete and therefore flawed analysis.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders