FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSRY v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1284 |
| Catchwords: MIGRATION – Review of report and recommendation of Independent Protection Assessor – refusal of a protection visa – applicant claiming ethnic and religious persecution in Afghanistan – applicant disbelieved in critical respects – whether the Independent Protection Assessor erred in applying the complementary protection criterion considered. |
| Legislation: Judiciary Act 1903 (Cth), ss.39B |
| Applicant: | SZSRY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 598 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 September 2013 |
| Date of Last Submission: | 15 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Stanford Lawyers |
| Counsel for the Respondents: | Mr B O'Donnell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the first respondent be amended to “Minister for Immigration and Border Protection”.
The Court declares that the report and recommendation of the Independent Protection Assessor made on 18 April 2012 was not made in accordance with law.
The first respondent is restrained by himself or by his Department, officers, delegates or agents from relying upon the report and recommendation of the Independent Protection Assessor.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 598 of 2013
| SZSRY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a report and recommendation of an Independent Protection Assessment Officer (Assessor). The report…
Continue reading SZSRY v MIBP
Sign in free to access the full text
Details
- AGLC
- SZSRY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1284
- Case
- [2013] FCCA 1284
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for judicial review of a decision by an Independent Protection Assessor (IPA) regarding the applicant's claim for complementary protection under section 36(2)(aa) of the *Migration Act 1958* (Cth). The applicant sought review of the IPA's finding that he did not meet the criteria for complementary protection, specifically that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Afghanistan, he would suffer significant harm.
The legal issues before the court were whether the IPA had failed to take relevant considerations into account, namely her own findings regarding the unstable security situation in Afghanistan and the plausibility of the applicant's brother being kidnapped and killed, when assessing the applicant's claims. Additionally, the court considered whether the IPA had applied the correct legal test under section 36(2)(aa) and whether she had erroneously failed to consider section 36(2B) of the *Migration Act 1958*.
Judge Driver reasoned that the IPA's assessment of the applicant's credibility was central to her decision. The IPA explicitly stated she was not satisfied that the claimed events in Afghanistan had occurred due to the applicant's lack of credibility. Consequently, she was not satisfied that there were substantial grounds for believing a real risk of significant harm would arise upon removal. The court noted that the applicant pressed grounds relating to the IPA's failure to consider the general security situation in Afghanistan and the correct test under section 36(2)(aa), and was permitted to add a ground concerning the failure to consider section 36(2B).
The court ultimately found that the IPA's conclusion that she was not satisfied of the applicant's credibility meant that the specific events he relied upon were not accepted as having occurred. This lack of factual basis for the claimed events underpinned the IPA's determination that there was no real risk of significant harm. The court did not make final orders in the provided text.
The legal issues before the court were whether the IPA had failed to take relevant considerations into account, namely her own findings regarding the unstable security situation in Afghanistan and the plausibility of the applicant's brother being kidnapped and killed, when assessing the applicant's claims. Additionally, the court considered whether the IPA had applied the correct legal test under section 36(2)(aa) and whether she had erroneously failed to consider section 36(2B) of the *Migration Act 1958*.
Judge Driver reasoned that the IPA's assessment of the applicant's credibility was central to her decision. The IPA explicitly stated she was not satisfied that the claimed events in Afghanistan had occurred due to the applicant's lack of credibility. Consequently, she was not satisfied that there were substantial grounds for believing a real risk of significant harm would arise upon removal. The court noted that the applicant pressed grounds relating to the IPA's failure to consider the general security situation in Afghanistan and the correct test under section 36(2)(aa), and was permitted to add a ground concerning the failure to consider section 36(2B).
The court ultimately found that the IPA's conclusion that she was not satisfied of the applicant's credibility meant that the specific events he relied upon were not accepted as having occurred. This lack of factual basis for the claimed events underpinned the IPA's determination that there was no real risk of significant harm. The court did not make final orders in the provided text.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
As to complementary protection, the Assessor made the following findings[42]:I have also considered whether the claimant meets the alternative criterion in s 36(2)(aa), including the submission by the claimant’s agent that there is a real risk that the claimant will suffer significant harm by being deprived of life should he be returned to Afghanistan. As indicated above, I am not satisfied that the claimant’s brother was kidnapped or killed for the reasons claimed; nor that [the] claimant was beaten or tortured by the Taliban, accused of killing a Pashtun or targeted by them, either to avenge the death of the Pashtun, by virtue of any government association, or as a Hazara Shi’a. Based on the claimant’s lack of credibility, I am not satisfied on the available evidence that any of the claimant’s claimed events in Afghanistan, in fact, occurred. In light of this, I am not satisfied on the evidence that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk that the claimant will suffer significant harm, having regard to the definitions in ss 5 and 36. I am, therefore, not satisfied that the claimant is a person to whom Australia has protection obligations under s 36(2)(aa). As I have found there is no real risk, it is unnecessary for me to consider s 36(2B). (emphasis added)[42] CB 217 [155] On 20 April 2012, the Department wrote to the applicant informing him of the IPA result[43]. [43] CB 182-3 These proceedings began with a show cause application filed on 25 March 2013. The applicant now relies upon an amended application filed on 9 September 2013. The grounds in that application are:1. That the Independent Protection Assessor failed to take a relevant consideration into account.ParticularsThe Independent Protection Assessor failed to take into account her own finding, at paragraph [134], that the security situation in Afghanistan remains highly unstable and that Ghazni province is one of the most volatile in the country, with attacks by insurgents against civilian targets, government representatives and international forces, in the Independent [Protection Assessor’s] assessment of the Applicant’s claims under the complementary protection provisions.2. That the Independent [Protection Assessor] failed to take a relevant consideration into account.ParticularsThe Independent Merits Reviewer failed to take into account relevant findings at paragraph [140] and [141] regarding the plausibility of the Applicant’s brother being kidnapped and killed in assessing the Applicant’s claim under the complementary protection provisions.3. That the Independent Protection Assessor failed to apply the correct test in relation to the complementary protection provisions contained at section 36(2)(aa) of the Migration Act 1958.4. That the Independent Protection Assessor erroneously failed to consider section 36(2B) of the Migration Act 1958. I have before me as evidence the book of relevant documents filed on 3 May 2013 and the affidavit of Charles Frederick Stanford made on 19 August 2013, to which is annexed a transcript of the interview conducted with the applicant by the Assessor on 21 February 2012. The applicant pressed Grounds 1 and 3 at the trial of this matter. Ground 2 was not pressed. In the light of argument during the course of the trial of the matter, I permitted the applicant to add Ground 4 and the parties made additional written submissions in relation to that ground. Both parties made oral and written submissions in relation to Grounds 1 and 3.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.