SZSIB v Minister for Immigration - [2013] FCCA 1413

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSIB v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1413

Catchwords:
MIGRATION – Review of Independent Protection Assessor’s decision – whether assessor applied correct test to assessment of complementary protection requirements – where assessor found that imprisonment for ten days to two months for dress code violations did not constitute significant harm – whether finding so unreasonable as to be absurd – where country information before assessor referred to non-state actors policing morality – whether applicant claimed before assessor to fear significant harm from non-state actors – whether assessor failed to deal with the full integers of the applicant’s claims under complementary protection.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) and 36(2)(aa)

Summary Offences Act 1995 (NT) s.53

Judicial Review of Administrative Action 5^th Ed

Minister for Immigration & Anor v MZYYL & Anor [2012] 207 FCR 211
Minister for Immigration & Anor v SZQRB [2013] 296 ALR 525
Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1KB 223
SZSGA v Minister for Immigration & Anor [2013] FCA 774
Htun v Minister for Immigration & Anor [2001] 194 ALR 244
Dranichnikov v Minister for Immigration & Anor [2003] 197 ALR 389
NABE v Minister for Immigration & Anor(No 2) [2004] FCR 1
M61/2010E v The Commonwealth [2010] 243 CLR 319

Applicant:

SZSIB

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIA BAILEY IN HER CAPACITY AS THE INDEPENDENT PROTECTION ASSESSOR

File Number:

SYG 2820 of 2012

Judgment of:

Judge Raphael

Hearing date:

12 September 2013

Date of Last Submission:

12 September 2013

Delivered at:

Sydney

Delivered on:

23 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr P Bodisco

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,646.00.
The name of the First Respondent be changed to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2820 of 2012

SZSIB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIA BAILEY IN HER CAPACITY AS THE INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

The applicant is an Iranian citizen who arrived in Australia on 3 December 2011. He made a request for a protection obligations determination on 18 February 2012. A delegate recommended that he not be considered a person to whom Australia owed protection obligations. On 17 March 2012 a determination was referred to an independent protection assessor. The assessor held a hearing which the applicant attended together with his migration agent. On 8 September 2012 the assessor confirmed the delegate’s recommendation.
The applicant put his claim to be a person to whom Australia owed protection obligations in several ways. The principal one was that in November 2011, whilst visiting a client in his cosmetics shop, he witnessed the beating, arrest and detention of the shop owner, a Baha’i. The applicant told that this action had been taken by the Basij who were…

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 1413
Decision Date: 23 September 2013

CaseChat Overview and Summary

SZSIB (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is of Hazara ethnicity, claimed to fear persecution in Afghanistan due to their ethnicity and their perceived association with the Afghan National Army. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not substantiated and that they would not face persecution upon return to Afghanistan. The matter came before Judge Raphael in 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 jurisdictional error. This involved determining whether the delegate had properly considered all relevant aspects of the applicant's claims, including the evidence of persecution faced by Hazaras in Afghanistan and the applicant's specific circumstances. The Court was required to assess whether the delegate's findings of fact were reasonably open on the evidence and whether the delegate had applied the correct legal principles in assessing the risk of persecution.

Judge Raphael found that the delegate had made a jurisdictional error by failing to adequately consider the evidence relating to the general risk of persecution faced by Hazaras in Afghanistan. The delegate had focused on the applicant's individual circumstances without sufficiently engaging with the broader country information that indicated a real chance of serious harm to members of the Hazara ethnic group. The Court held that the delegate's assessment of the applicant's claims was therefore flawed, as it did not properly take into account the objective evidence of the dangers faced by the applicant's ethnic group.

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

Orders