SZSAR v Minister for Immigration - [2013] FCCA 534

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSAR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 534

Catchwords:
MIGRATION – Review of decision of RRT – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.91R(1)

Applicant:

SZSAR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2336 of 2012

Judgment of:

Judge Raphael

Hearing date:

6 June 2013

Date of Last Submission:

6 June 2013

Delivered at:

Sydney

Delivered on:

6 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 $5,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2336 of 2012

SZSAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant, who is an ethnic Chinese of Malaysian nationality arrived in Australia on 10 August 2011. On 9 February 2012 he applied to the Department of Immigration for a protection (Class XA) visa. On 21 February 2012 a delegate of the Minister refused to grant a protection visa when the applicant did not appear to attend an interview that had been scheduled with the delegate. The applicant applied for a review of that decision from the Refugee Review Tribunal before whom he did appear on 29 August 2012. On 20 September 2012 the Tribunal determined to affirm the decision not to grant him a protection visa.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the convention one of race. He told that as an ethnic Chinese within Malaysia he had been discriminated against, in particular in relation to his ability to work at his trade as a welder. He told particularly of an incident where, in November 2010, he was sent by his employer to install an iron gate in a home belonging to a Malay. He said that a fee of 28000 MYR had been agreed but the Malay only proposed to pay 15000 MYR. When the applicant went to collect the balance that was refused and an incident arose between the applicant and his boss and the Malay, who had some connections with the police force. As a result, over a period of time, the police interfered in the workshop and caused difficulties which eventually led to the applicant’s boss asking him to leave his employment on 23 May 2011.
The applicant claimed that this incident had a continuing effect upon him and was indicative of the type of persecution and discrimination that ethnic Chinese suffered within Malaysia. However, at the hearing he agreed that he had not suffered any physical harm as a result of the incident and that if physical harm had been intended against him it could have happened between the incident in November and his departing Malaysia the following August. The applicant told the Tribunal that his family still remained in Malaysia and that everything was normal,…

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 534
Decision Date: 6 June 2013

CaseChat Overview and Summary

The applicant, SZSAR, 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's decision to refuse the protection visa was affected by an error of law. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims of persecution, particularly in relation to the subjective and objective elements of a well-founded fear. The Court also considered whether the delegate had adequately assessed the risk of harm should the applicant be returned to their country of origin.

Judge Raphael found that the delegate had made an error of law by failing to properly assess the applicant's subjective fear. The delegate had not adequately engaged with the applicant's evidence regarding past experiences and the potential for future harm. The Court reiterated the principle that a well-founded fear requires both a subjective component (the applicant genuinely fears persecution) and an objective component (there are real, not imaginary, grounds for that fear). The delegate's assessment had placed undue emphasis on the objective elements without sufficiently exploring the subjective experience of the applicant.

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

Orders