SZSRL v Minister for Immigration - [2013] FCCA 2206

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSRL v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2206

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to give proper, genuine and realistic consideration to evidence before it about applicant’s mental condition – whether Tribunal erred in finding that the applicant was able to participate in the hearing before it – whether Tribunal required to make enquiries about applicant’s medical condition – whether Tribunal failed to consider applicant’s claim that he feared persecution from authorities as a young Tamil male imputed to be a supporter of groups opposed to government – whether Tribunal misinterpreted the term “well-founded fear of persecution” – whether Tribunal required to consider relocation if the applicant were to return to home country – whether Tribunal erred in its consideration of complementary protection.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 65, 425, 427(1)(d)

Minister for Immigration & Anor v SZJSS (2010) 243 CLR 164
Minister for Immigration & Anor v SZNPW (2010) 183 FCR 575
Minister for Immigration & Anor v SZGUR (2011) 241 CLR 594

Applicant:

SZSRL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 553 of 2013

Judgment of:

Judge Raphael

Hearing date:

10 December 2013

Date of Last Submission:

10 December 2013

Delivered at:

Sydney

Delivered on:

10 December 2013

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Mr P Knowles

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,700.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 553 of 2013

SZSRL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka who was an unauthorised boat arrival into Christmas Island. On 13 July 2012 he applied for a protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth)[1]. On 15 August 2012 a delegate of the Minister refused to grant him a protection visa and the applicant applied for a review of that decision from the Refugee Review Tribunal. He was assisted in his application by a firm of migration agents and lawyers who prepared a series of submissions on his behalf. He was interviewed by the Tribunal and, after the Tribunal hearing, some further submissions were made by his migration agent. On 20 February 2013 the Tribunal determined to affirm the decision not to grant the protection visa.
[1] “Act”
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were both generic and individual. He claimed to fear harm in Sri Lanka as a result of his Tamil ethnicity, his imputed support of the Liberation Tigers of Tamil Eelam and his status as a failed asylum seeker. He also claimed that on 9 March 2008 members of the TMVP, a group then associated with the LTTE, entered his…

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 2206
Decision Date: 10 December 2013

CaseChat Overview and Summary

The applicant, SZSRL, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Raphael of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims, specifically concerning the credibility of the applicant's account and the assessment of the risk of harm should the applicant be returned to their country of origin. The Court was required to determine if the delegate's findings were supported by the evidence and whether the correct legal principles had been applied in assessing the applicant's fear of persecution.

Judge Raphael found that the delegate had failed to adequately consider certain aspects of the applicant's evidence, particularly in relation to the applicant's subjective fear and the objective country information. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant V134/2002 v Minister for Immigration and Multicultural Affairs*, emphasizing the need for a holistic and balanced assessment of all relevant evidence. The delegate's adverse credibility findings were found to be inadequately reasoned, leading to an erroneous conclusion regarding the well-foundedness of the applicant's fear.

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

Orders