SZRUT v MIBP - [2015] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQY v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 262

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – adverse credibility findings against Applicant – no jurisdictional error – application dismissed.

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Applicant:

MZZQY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1333 of 2013

Judgment of:

Judge Hartnett

Hearing date:

3 October 2014

Delivered at:

Melbourne

Delivered on:

10 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr Fairfield

Solicitors for the Applicant:

Ambi Associates

Counsel for the respondents:

Ms Battem

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1333 of 2013

MZZQY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By Amended Application filed 4 September 2014 the Applicant seeks:-
“1. A declaration that the decision of the Tribunal dated 30 July 2013 is unlawful, void and of no force and effect.
2. Certiorari quashing or setting aside the decision of the Tribunal.
3. Prohibition directed to the first Respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the Tribunal.
4. Mandamus or an injunction compelling the first Respondent to cause the Tribunal to consider and determine according to law the Applicant’s application for a protection visa.
5. Costs.”
The ground of the Application is as follows:-
“1. The Tribunal’s decision and reasons for decision disclose jurisdictional error because the Tribunal misunderstood, misconstrued and failed to consider a claim, or integer of a claim, made by the applicant.
Particulars
(a) The applicant had claimed that he owed 400,000 rupees to politically connected people smugglers and that the ‘agent’ of the people smugglers who demanded the payment had political connections. The applicant feared persecution upon his return to Sri Lanka from the politically connected people smugglers and their politician allies and that the Sri Lankan government would not protect him as a result.
(b) This claim was first raised by the applicant in his initial interview
(c) It was repeated in a written submission to the Tribunal
(d) The Tribunal reasoned:
"”I reject the applicant's claim that he is at risk of harm from a politician called “Santha” and that this person threatened his family or levied a threat against the applicant accompanied with a demand for money owed for the applicant's passage to Australia. Whilst he has consistently claimed that there is an amount of about 4 lakh rupees owing for his trip, and I have no reasons not to accept this to…

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.

Continue reading SZRUT v MIBP

Details

AGLC: SZRUT v MIBP [2015] FCCA 262
Case: [2015] FCCA 262
Decision Date: 10 February 2015

CaseChat Overview and Summary

SZRUT (the Applicant) sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) to refuse an application for a Protection (Class XA) visa. The Tribunal had made adverse credibility findings against the Applicant, which formed the basis of its refusal. The matter came before Judge Hartnett in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Tribunal had committed any jurisdictional error in its assessment of the Applicant's claims and in making adverse credibility findings. The Applicant contended that the Tribunal's decision was flawed, necessitating a review by the Court.

Judge Hartnett found no jurisdictional error in the Tribunal's decision-making process. The Court's reasoning focused on the Tribunal's careful consideration of the evidence and the Applicant's submissions, concluding that the adverse credibility findings were open to the Tribunal on the material before it. The Court affirmed the established legal principles regarding the Tribunal's role in assessing credibility and the limited scope of judicial review for jurisdictional error.

Consequently, the application was dismissed. The Applicant was ordered to pay the First Respondent’s costs, fixed in the sum of $6,200.

Orders

Orders of the court

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,200.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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