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SZSKC v MIBP

SZSKC v MIBP

Case [2014] FCCA 938 16 May 2014

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSKC v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 938

Catchwords:
MIGRATION – Review of report and recommendation of an Independent Protection Assessment Reviewer – applicant claimed persecution in Iran as a Faili Kurd – whether the Reviewer erred by misapplying the complementary protection criterion – Error of law in misapplication of test to be applied – Declaration made.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 36(2)(a), 36(2)(aa), 91X, 91L, 195A

Applicant:

SZSKC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

TAMARA HAMILTON-NOY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 2982 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

31 May 2013

Delivered at:

Sydney

Delivered on:

16 May 2014

REPRESENTATION

Counsel for the Applicant:

Mr C. Peadon

Solicitor for the Applicant:

Mr H. Collings-Begg of Allens Linklaters

Counsel for the First Respondent:

Mr P. Knowles

Solicitor for the First Respondent:

Ms H. Dejean of Australian Government Solicitor

The Second Respondent:

The Second Respondent filed a submitting notice of appearance.

ORDERS

THE COURT DECLARES THAT:

The Recommendation of the Independent Protection Assessment Reviewer made in respect of the applicant on 18 June 2012 was not made in accordance with law.

THE COURT ORDERS THAT:

The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The First Respondent, by himself or by his departmental officers, delegates or agents, be restrained from relying upon the Recommendation of the Independent Protection Assessment Reviewer made in respect of the Applicant on 18 June 2012.
The First Respondent pay the Applicant’s costs 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 SZSKC.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2982 of 2012

SZSKC

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”) seeking judicial review of a decision of the Independent Merits Reviewer (the “IMR”), being DIAC reference, CLF2011/26476, a decision of T. Hamilton-Noy dated 18 June 2012, finding that the applicant did not meet the criteria for a Protection (Class XA)…

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 SZSKC v MIBP

Details

AGLC: SZSKC v MIBP [2014] FCCA 938
Case: [2014] FCCA 938
Decision Date: 16 May 2014

CaseChat Overview and Summary

The applicant, SZSKC, sought judicial review of a decision made by the respondent, MIBP, to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Lloyd-Jones J in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in finding that the applicant's claims of persecution were not credible or, alternatively, had not established a real chance of suffering harm amounting to persecution upon return to their country of origin. This involved a detailed assessment of the applicant's account of events and the objective country information relevant to their situation.

Lloyd-Jones J considered the evidence presented by the applicant and the country information provided by the respondent. The Court applied the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant S20/2002 v Minister for Immigration and Multicultural Affairs*, which require a decision-maker to assess the real chance of harm, taking into account both subjective fear and objective circumstances. His Honour found that the delegate had failed to adequately consider certain aspects of the applicant's evidence and had not properly assessed the risk of harm in light of the available country information. Consequently, the delegate's decision was found to be affected by jurisdictional error.

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

Orders