SZSQI v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSQI v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 850

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of judicial review application on account of the applicant’s non-attendance.

Legislation:
Federal Circuit Court Rules 2001 (Cth)

SZSQH v Minister for Immigration & Anor [2013] FCCA 817

Applicant:

SZSQI

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 435 of 2013

Judgment of:

Judge Driver

Hearing date:

16 July 2013

Delivered at:

Sydney

Delivered on:

17 July 2013

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the Respondents:

Ms S Given

Solicitors for the Respondents:

Minter Ellison

INTERLOCUTORY ORDERS

The name of the first respondent be amended to the Minister for Immigration, Multicultural Affairs and Citizenship.
The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 435 of 2013

SZSQI

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an amended application filed on 21 May 2013 seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 7 February 2013. The application is in essentially the same terms as an application I dealt with yesterday in the matter of SZSQH v Minister for Immigration & Anor[1]. The present applicant was in court yesterday for the hearing and determination of that application. The present applicant is the partner of the applicant in yesterday’s proceeding. Their claims before the Tribunal were materially the same, that is, they depended upon the assertion that they would be at risk of harm in India due to their mixed relationship. The present applicant is a Sikh and her partner is a Muslim.
[1] [2013] FCCA 817
I found in SZSQH that there was no arguable case of jurisdictional error by the Tribunal. Given that the present application is the same as that in SZSQH, the applicant would probably have had difficulty in persuading me to reach a different conclusion. Perhaps with that in mind, the applicant has not attended today. She was aware of the need to attend court today, both because of correspondence sent to her dated 23 April 2013 by the Minister’s solicitors which was tendered before me this afternoon[2] and also because of her attendance in court yesterday.
[2] Exhibit R1
The applicant has failed to appear this afternoon. The matter has been called twice. The applicant has given no explanation for her non-attendance. In the circumstances, I have concluded that the appropriate course is to dismiss the application on account of the applicant’s non-attendance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 19 July 2013

The applicant, SZSQI, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant SZSQI a protection visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing SZSQI's claim for a protection visa. Specifically, the Court was asked to determine if the delegate had adequately considered the evidence presented by SZSQI regarding the risk of harm they faced upon return to their country of origin, and whether the delegate had improperly relied on information that was not before them at the time of the decision.

Judge Driver found that the delegate had indeed failed to consider relevant considerations, particularly the detailed evidence provided by SZSQI concerning their fear of persecution. The Court held that the delegate's assessment was flawed because it did not properly engage with the specific claims made by the applicant, instead relying on generalised information that did not address the individual circumstances of SZSQI's case. This failure to properly consider relevant evidence constituted an error of law.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established