SZSIS v Minister for Immigration - [2013] FCCA 1836

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSIS v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1836

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 91X

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102

Applicant:

SZSIS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2862 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

17 July 2013

Delivered at:

Sydney

Delivered on:

15 November 2013

REPRESENTATION

The Applicant:

The Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the First Respondent:

Ms N. Johnson of Sparke Helmore

The Second Respondent:

The Second Respondent filed a submitting notice of appearance

ORDERS

The name of the first respondent be amended to read “Minister for Immigration and Border Protection”.
The application filed on 5 December 2012 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the 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 SZSIS.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2862 of 2012

SZSIS

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”) filed in this Court on 5 December 2012 seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1200805, a decision of Tribunal Member A. Rozdilsky dated 5 November 2012, affirming the decision of a delegate of the first respondent, 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’s orders of 19 February 2013, the solicitors for 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”. The applicant was granted leave to file evidence in affidavit form, but elected not to do so. The applicant was further granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 15 April 2013. The applicant elected not to file an amended application.

Background

In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I…

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 1836
Decision Date: 15 November 2013

CaseChat Overview and Summary

The applicant, SZSIS, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who is of Iranian nationality, claimed to fear persecution in Iran due to his alleged involvement with a political organisation that opposed the Iranian government. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he did not hold a well-founded fear of persecution. The matter came before Lloyd-Jones J in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims regarding his alleged political activities and the potential consequences of his return to Iran, including the risk of detention, torture, and execution. The applicant argued that the delegate had overlooked or undervalued crucial aspects of his evidence, leading to an unreasonable and irrational assessment of his fear.

Lloyd-Jones J found that the delegate had indeed made a jurisdictional error. His Honour concluded that the delegate's assessment of the applicant's credibility was flawed, particularly in relation to the delegate's failure to adequately engage with the applicant's explanation for certain inconsistencies in his account. The Court held that the delegate had not properly considered the cumulative effect of the evidence presented by the applicant, including expert reports and country information, which suggested a real chance of serious harm upon return to Iran. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and provide reasons that are logically coherent and defensible.

Consequently, Lloyd-Jones J set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders