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SZRTF v Minister for Immigration

SZRTF v Minister for Immigration

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Case Copied 31 May 2013 31 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRTF v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 91

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming religious persecution in China and also persecution because of the Chinese one child policy – applicant claiming to be pregnant with a second child after the Tribunal hearing but before the Tribunal made its decision – Tribunal giving no weight to that claim – jurisdictional error established because of the failure of the Tribunal to investigate the claim.

Legislation:
Migration Act 1958 (Cth), ss.36, 91R, 424, 425, 427

Cases cited:
Abebe v Commonwealth (1999) 197 CLR 510
Applicant A v Minister for Immigration (1997) 190 CLR 225
Applicant M164/2002 v Minister for Immigration and [2006] FCAFC 16
Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293
Foxtel Management Pty Ltd v ACCC (2000) 173 ALR 362
Htun v Minister for Immigration (2001) 194 ALR 244
Luu v Renevier (1989) 91 ALR 39
Minister for Immigration v Applicant S (2002) 124 FCR 256

Minister for Immigration v Jia (2001) 205 CLR 507

Minister for Immigration v SZIAI (2009) 259ALR 429, (2009) 83 ALJR 1123
Minister for Immigration v SZKTI (2009) 238 CLR 489
Minister for Immigration v Teoh (1995) 183 CLR 273
Muin v Refugee Review Tribunal (2002) 190 ALR 601
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

NASJ v Minister for Immigration & Anor [2005] FMCA 124
Prasad v Minister for Immigration (1985) 6 FCR 155

Re Minister for Immigration; ex parte Applicant S154/ (2003) 77 ALJR 1909
SAAQ v Minister for Immigration [2002] FCA 704
Senthilnathan Tharmalingamv Minister for Immigration [1998] FCA 537
SFGB v Minister for Immigration (2003) 77 ALD 402
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZJRU v Minister for Immigration (2009) 108 ALD 515

SZMYO v Minister for Immigration (2011) 121 ALD 272

SZNTO v Minister for Immigration (2010) 114 ALD 129
Tickner v Bropho (1993) 40 FCR 183

V722 of 2000 v Minister for Immigration [2002] FCA 1059
VTAO v Minister for Immigration (2004) 81 ALD 332
Wang v Minister for Immigration (2001) 105 FCR 548
Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272

First Applicant:

SZRTF

Second Applicant:

SZRTG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1870 of 2012

Judgment of:

Judge Driver

Hearing date:

22 February 2013

Date of last submissions:

8 April 2013

Delivered at:

Sydney

Delivered on:

31 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Kinslor Prince Lawyers

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Minter Ellison

ORDERS

A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 7 August 2012 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before…

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 91
Decision Date: 31 May 2013

CaseChat Overview and Summary

The applicant, SZRTF, 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 the applicant's claims for protection based on a fear of persecution in their country of origin. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of the applicant's claims for protection. Specifically, the Court was required to consider whether the delegate had failed to properly consider all relevant aspects of the applicant's evidence and submissions, and whether the delegate's adverse credibility findings were reasonably open on the evidence. The Court also considered whether the delegate had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in assessing the applicant's claims.

Judge Driver found that the delegate had made an error of law by failing to adequately explain the reasons for rejecting key aspects of the applicant's evidence. The Court held that an adverse credibility finding must be based on a logical and rational process, and that the delegate's reasoning in this instance was insufficient to discharge this obligation. The principles applied included the requirement for administrative decision-makers to provide adequate reasons for their decisions, particularly when making adverse credibility findings that are determinative of a claim. The Court emphasised that a failure to engage with and explain the rejection of significant evidence can constitute a jurisdictional error.

The Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders