SZRTN v Minister for Immigration - [2014] FCCA 835

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRTN v MINISTER FOR IMMIGRATION

[2014] FCCA 835

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.48A, 48B

SZGIZ v Minister for Immigration [2013] FCAFC 71
SZRNJ v Minister for Immigration & Anor [2014] FCCA 782

SZRTN v Minister for Immigration & Anor [2013] FCCA 583

SZRTN v Minister for Immigration [2013] FCA 1156

Applicant:

SZRTN

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 3270 of 2013

Judgment of:

Judge Driver

Hearing date:

24 April 2014

Delivered at:

Sydney

Delivered on:

24 April 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Ms M Stone

DLA Piper

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3270 of 2013

SZRTN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application filed on 31 December 2013, seeking, relevantly, a declaration that a protection visa application made by the applicant on 23 December 2013, is not invalid and is not barred by s.48A of the Migration Act 1958 (Cth) (Migration Act). The application also seeks an injunction restraining the Minister from removing the applicant from Australia. The applicant is currently in immigration detention. He has lived in Australia for most of his life. He has previously made a protection visa application which was refused both by the Minister’s delegate and on review, by the Refugee Review Tribunal. That decision was made on 10 August 2012.
The applicant sought review of that decision in this Court and was unsuccessful[1]. He was also unsuccessful on appeal in the Federal Court[2].
[1] SZRTN v Minister for Immigration & Anor [2013] FCCA 583
[2] SZRTN v Minister for Immigration [2013] FCA 1156
The applicant relies upon affidavits made by him filed on 26 March 2014 and 31 December 2013. I received those affidavits in part as assertions of fact and in part as submissions. I also gave leave for the applicant to file in court a written outline of submissions to which he addressed orally. The Minister relies upon the affidavit of Michelle Elizabeth Stone made on 20 February 2014. I received as an exhibit the previous Tribunal decision.
The applicant, in his submissions, sought to take advantage of the decision of the Full Federal Court in SZGIZ v Minister for Immigration[3]. The Court in that case was dealing with circumstances in which an applicant made a protection visa application, which was determined prior to the introduction of the complementary protection criterion in March 2012. The Court found that the applicant was…

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: [2014] FCCA 835
Decision Date: 24 April 2014

CaseChat Overview and Summary

The applicant, SZRTN, 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 Convention reason.

The primary legal issue before Driver J was whether the Tribunal had erred in law by failing to adequately consider the applicant's claims regarding past persecution and the risk of future persecution, specifically in relation to the alleged persecution by members of the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan military. The court was required to determine if the Tribunal's assessment of the applicant's credibility and the objective country information was reasonable and consistent with the relevant legal principles.

Driver J found that the Tribunal had failed to adequately assess the applicant's claims of past persecution, particularly in relation to the alleged ill-treatment by the LTTE. The Tribunal's reasoning was found to be deficient in its consideration of the applicant's evidence and its engagement with the objective country information. Consequently, the court concluded that the Tribunal had not properly considered whether the applicant had a well-founded fear of persecution for a Convention reason. The application for judicial review was therefore granted.

Orders