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SZSFF v MIBP

SZSFF v MIBP

Case [2013] FCCA 1884 22 November 2013

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSFF v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1884

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – claimed failure by the Tribunal to consider or assess the Applicant’s claim for complementary protection – no applicable criteria – Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 91R(3), 91X, 424A, 477(2)(b)

Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
S 58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559

Vu v Minister for Immigration and Citizenship & Anor (2008) 101 ALD 211

Applicant:

SZSFF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2663 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

21 May 2013

Delivered at:

Sydney

Delivered on:

22 November 2013

REPRESENTATION

The Applicant:

The Applicant appeared in person with the assistance of an Arabic interpreter.

Solicitor for the First Respondent:

Ms K Hooper of DLA Piper

The Second Respondent:

The Second Respondent filed a submitting notice of appearance.

ORDERS

The name of the First Respondent is amended to read “Minister for Immigration and Border Protection”.
The application for an extension of time as sought in the Application filed on 16 November 2012 and Amended Application on 11 March 2013 is refused.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application and Amended Application.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSFF.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2663 of 2012

SZSFF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) for an extension of time to seek judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1201263, a decision of Tribunal Member S. Roushan dated 24 May 2012, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.
In accordance with the Court Orders made on 5 February 2013 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
At the First Court Date directions hearing the applicant sought…

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 SZSFF v MIBP

Details

AGLC: SZSFF v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1884
Case: [2013] FCCA 1884
Decision Date: 22 November 2013

CaseChat Overview and Summary

The applicant, SZSFF, sought judicial review of a decision made by the Minister for Immigration and Border Protection (MIBP) to refuse to grant a protection visa. The dispute concerned whether the applicant met the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The matter came before Lloyd-Jones J in the Federal 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 information, including the applicant's personal circumstances and the country information pertaining to their claimed country of origin, when determining whether the applicant had a well-founded fear of persecution.

Lloyd-Jones J found that the delegate had failed to adequately consider certain aspects of the country information and the applicant's personal circumstances, leading to an error in the assessment of the risk of harm. The Court applied the principles of administrative law, including the duty to afford procedural fairness and the requirement for a decision-maker to undertake a proper and logical assessment of the evidence. The Court concluded that the delegate's decision was affected by an error of law.

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

Orders