SZSRX v Minister for Immigration - [2014] FCCA 2447

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSRX v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2447

Catchwords:
MIGRATION – Application for review of decision by Independent Protection Assessment Reviewer (Reviewer) – whether Reviewer was under a duty to inform the applicant that one issue the Reviewer intended to consider was whether the applicant’s claim satisfied the complementary protection criteria – whether Reviewer gave such notice – whether the notice the Reviewer gave was adequate – whether one of the claims the applicant made was also a claim based on complementary protection – whether the Reviewer considered such claim – whether the Reviewer failed to apply the “real chance” test when determining whether the applicant was entitled to protection under the complementary protection criteria – no legal error.

Legislation:

Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Article 1A(2)

Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 36(2A), 46A(1), 46A(2), 91R(2), 195A(2), 425

Applicant:

SZSRX

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IRENE O’CONNELL IN HER CAPACITY AS INDEPNDENT PROTECTION ASSESSMENT REVIEWER

File Number:

SYG 597 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

4 April 2014

Delivered at:

Sydney

Delivered on:

24 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr A. Searle with Mr P. Bodisco

Solicitors for the Applicant:

Stanford Lawyers

Counsel for the Respondents:

Mr J. Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 597 of 2013

SZSRX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a national of Vietnam, seeks a declaration that the second respondent’s recommendation that the applicant does not meet the criteria for a Protection (Class XA) visa was not made according to law, and an injunction to restrain the first respondent (Minister) from relying on the recommendation.
The applicant relies on three grounds: the second respondent (Reviewer) failed to consider all the integers of the applicant’s…

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: [2014] FCCA 2447
Decision Date: 24 October 2014

CaseChat Overview and Summary

This matter came before Judge Manousaridis of the Federal Circuit Court of Australia concerning an application for review of a decision by the Minister for Immigration. The applicant sought a protection visa, and the core of the dispute revolved around whether the applicant had a well-founded fear of persecution or faced a real risk of significant harm upon return to Vietnam.

The court was required to determine whether the Reviewer erred in finding that the applicant did not meet the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) by failing to establish a well-founded fear of persecution. Additionally, the court had to consider whether the Reviewer correctly assessed the applicant's claims under section 36(2)(aa) of the Act, specifically whether there were substantial grounds for believing that the applicant would suffer significant harm, as defined in section 36(2A), as a necessary and foreseeable consequence of removal to Vietnam.

The applicant argued that the Reviewer made the same error as identified in *SZSFK v Minister for Immigration & Anor*, namely failing to distinguish between the criteria in section 36(2)(a) and section 36(2)(aa). The Reviewer's reasons indicated a consideration of both limbs. For section 36(2)(a), the Reviewer was not satisfied of a well-founded fear of persecution. For section 36(2)(aa), the Reviewer accepted the applicant left Vietnam illegally and would likely be questioned by authorities upon return, but did not accept this questioning constituted "significant harm" under section 36(2A). The Reviewer also found no other forms of harm were established. The court analysed whether the Reviewer's reasoning in paragraphs 96-99 demonstrated a proper distinction and application of the relevant legal tests.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The basis of the applicant’s claim is contained in paragraphs 96, 97, 98, and 99 of the Reviewer’s reasons.96. For all the reasons set out above I am not satisfied that the claimant has a well founded fear of persecution on return to Vietnam within the meaning of the Refugee Convention. Accordingly I find the claimant does not meet the criteria for a protection visa set out in s.36(2)(a) of the Migration Act.97. In respect to whether the claimant meets the criteria set out in s.36(2)(aa) of the Migration Act I find as follows.98. As set out above I accept that that [sic] the claimant left Vietnam illegally and will return as a failed asylum seeker and will on her return likely to be the subject of questioning by the authorities. I do not accept that questioning of the claimant by the Vietnamese authorities is significant harm defined in s 36(2A) of the Migration Act (see paragraph above 16). As noted above, I do not accept the claimant faces any other form of harm on return to Vietnam.99. Accordingly I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Vietnam that there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Migration Act. The applicant submits the Reviewer made the same error Judge Driver found the reviewer made in SZSFK v Minister for Immigration & Anor.[58] In that case, his Honour found that the reviewer failed to distinguish between s.36(2)(a) and s.36(2)(aa) of the Act when considering the applicant’s claims for protection. Whether or not the Reviewer made the same error must be determined by analysing paragraphs 96-99 of her reasons.[58] SZSFK v Minister for Immigration & Anor [2013] FCCA 7 at [97] Paragraph 96 of her reasons contains the Reviewer’s conclusion in relation to s.36(2)(a) of the Act. As signalled by paragraph 97 of the decision, the Reviewer in paragraph 98 then considered whether the applicant’s claims fell within s.36(2)(aa) of the Act. The Reviewer singles out one particular claimed harm, namely, the applicant’s being questioned by Vietnamese authorities on her return because she left illegally and is a failed asylum seeker. The Reviewer had already considered that claim against s.36(2)(a) of the Act in paragraph 91 of her reasons, and in particular, whether the harm of being questioned by Vietnamese authorities constituted “serious harm” within the meaning of s.91R(2) of the Act. The Reviewer considered the claim of harm of being questioned by Vietnamese authorities in paragraph 98 of her reasons from the point of view of whether the harm constituted “significant harm” as defined in s.36(2A) of the Act. The Reviewer concluded she was not satisfied. The Reviewer then concluded that, “[a]s noted above”, she did not accept the applicant faced “any other form of harm on return to Vietnam”. The use of the words “[a]s noted above” appears at the very least to refer to the applicant’s claims in relation to the harms the Reviewer was not satisfied the applicant suffered in Vietnam or would suffer if she were to return to Vietnam. The claimed harms of which the Reviewer was not satisfied were the applicant’s being bullied and harassed at her workplace because of her religion,[59] and threats by the persons with whom the applicant was involved in the traffic accident.[60] [59] CB159, [87][60] CB159, [90]