SZSQL v Minister for Immigration - [2013] FCCA 2158

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSQL v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2158

Catchwords:
MIGRATION – Review of Independent Protection Assessor – whether Assessor considered applicant’s claims – no jurisdictional error.

Applicant:

SZSQL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

J BARTLETT IN THE CAPACITY AS THE INDEPENDENT PROTECTION ASSESSOR

File Number:

SYG 440 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

30 October 2013

Delivered at:

Sydney

Delivered on:

13 December 2013

REPRESENTATION

The Applicant in person.

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
Subject to order 3, the applicant pay the first respondent’s costs in the sum of $6,646 or for such lesser amount as the first respondent, on the publication of these reasons, informs the Court the first respondent has actually incurred.
The first respondent is at liberty to apply to the Court within seven days for an order to vary the amount of the costs assessed under order 2.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 440 of 2013

SZSQL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

J BARTLETT IN THE CAPACITY AS THE INDEPENDENT ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is not legally represented, seeks judicial review of a recommendation made by an Independent Protection Assessor (Assessor) not to recognise the applicant as a person to whom Australia owes protection obligations.
The only ground of review stated in the application is that the Assessor’s recommendation “was affected by legal error”. That does not identify any arguable ground for judicial review. At the hearing, however, the applicant, through an interpreter, made a number of submissions in support of his application. In these reasons for judgment, I will attempt to identify from those submissions, and consider, the grounds on which the applicant challenges the Assessor’s recommendation.
To properly undertake these tasks, it will be necessary to first set out the applicant’s claims for a protection visa, and the Assessor’s reasons for recommending that the applicant not be recognised as a person to whom Australia owes protection obligations.

Applicant’s claims before Assessor

The applicant is a national of Sri Lanka and an ethnic Tamil. The applicant’s claim for a protection visa was based on the following asserted matters, many of which were accepted by the Assessor.
From May 2009 to October 2009 the applicant lived in the Seven Four Refugee Camp (Camp) in Sri Lanka with his parents and his older and younger brothers. Shortly after the family arrived at the Camp, the applicant and his older brother, together with other young men, were questioned by members of the Sri Lankan Army about their possible involvement with the Liberation Tigers of Tamil Eelam (LTTE). Members of the Army also searched the bodies of the applicant, his older brother and the other young men for evidence of injuries or scars.
The applicant’s older brother had worked until 2008 as a mechanic at a workshop…

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 2158
Decision Date: 13 December 2013

CaseChat Overview and Summary

The applicant, SZSQL, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The Minister's decision was based on the applicant's alleged failure to provide sufficient information to establish a real chance of persecution. The matter came before Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had reasonably considered the evidence before them when assessing the applicant's claims for a protection visa. Specifically, the Court was required to determine if the delegate had failed to take into account relevant information or had taken into account irrelevant information, thereby vitiating the decision-making process.

Judge Manousaridis found that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and the risk of future persecution. The Court reasoned that the delegate's assessment had been overly narrow and had not given sufficient weight to the subjective experiences of the applicant and the objective country information available. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and not make findings that are not supported by the evidence.

The Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders