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SZSLU v Minister for Immigration

SZSLU v Minister for Immigration

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Case Copied 25 October 2013 28 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLU v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1622

Catchwords:
MIGRATION – Application filed out of time seeking review of Refugee Review Tribunal decision – application made for extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) – consideration of delay – consideration of merits of substantive application – not in the interest of the administration of justice to extend time – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.91X, 417, 477(1), 477(2)

Federal Circuit Court Rules2001 (Cth), r.44.12

SZEMJ v Minister for Immigration & Anor [2007] FMCA 913
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771

SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZNOR v Minister for Immigration & Anor [2009] FMCA 639
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZOCH v Minister for Immigration & Anor [2010] FMCA 300
SZOLM v Minister for Immigration & Anor [2011] FMCA 305

Applicant:

SZSLU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3135 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

7 May 2013

Delivered at:

Sydney

Delivered on:

25 October 2013

REPRESENTATION

The Applicant:

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

Solicitor for the First Respondent:

Ms A. Carr of DLA Piper

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 seeking an extension of time is refused.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,326.00.

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 SZSLU.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3135 of 2012

SZSLU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under the Judiciary Act 1903 and Migration Act 1958 (Cth) (the “Migration Act”) seeking an extension of time to apply for relief in the form of constitutional writs against a decision of the second respondent in these proceedings, the Refugee Review Tribunal (the “Tribunal”), RRT Case Number 1105927, dated 22 September 2011. In that decision the Tribunal affirmed the decision of a delegate of the first respondent in these proceedings, the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicant a Protection (Class XA) visa.
Pursuant to s.477(1) of the Migration Act, an application for judicial review of a decision of the Tribunal must to be filed within 35 days of the date of the Tribunal’s decision. The Application before this Court was filed…

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 1622
Decision Date: 25 October 2013

CaseChat Overview and Summary

The applicant, SZSLU, sought judicial review of a decision by the Minister for Immigration 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 Hazara community, which they alleged was being targeted by the Taliban. 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 Lloyd-Jones J in the Federal Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa 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 the general country situation in Afghanistan, particularly as it related to the Hazara ethnicity, and whether the delegate had adequately assessed the risk of harm to the applicant based on their ethnicity and perceived associations. The applicant also contended that the delegate had failed to provide adequate reasons for the decision.

Lloyd-Jones J found that the delegate had failed to properly consider the evidence relating to the general country situation in Afghanistan, particularly concerning the treatment of the Hazara people by the Taliban. The delegate's assessment was found to be superficial and did not engage with the detailed evidence presented by the applicant about the systematic persecution of Hazaras. The Court reiterated the principle that a delegate must undertake a comprehensive assessment of the evidence, including country information, and provide reasons that demonstrate a proper consideration of all relevant factors. The failure to adequately assess the country information and the applicant's claims constituted a jurisdictional error.

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

Orders