SZSUA v Minister for Immigration - [2015] FCCA 3345

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUA v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3345

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal failed to comply with s.430(1) of the Migration Act 1958 (Cth) (Act) as it stood at the time of decision – whether failure to comply manifested jurisdictional error – whether the Tribunal confused the tasks it was required to undertake when applying s.36(2)(aa) with the tasks it was required to undertake when applying s.36(2)(a) of the Act as these provisions stood at the time of decision – whether the Tribunal correctly applied s.36(2)(aa) of the Act as it stood at time of decision – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), s.91R(2), 430(1)
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
SZSFK v Minister for Immigration & Anor [2013] FCCA 7
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZTIF v Minister for Immigration & Anor [2014] FCCA 945; (2014) 285 FLR 251

Applicant:

SZSUA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 874 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

7 November 2014

Delivered at:

Sydney

Delivered on:

18 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr P Bodisco

Solicitors for the Applicant:

JPS Legal Services

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The Administrative Appeal Tribunal is substituted for the Refugee Review Tribunal as second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 874 of 2013

SZSUA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is a national of Sri Lanka and a Tamil, seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
It would be appropriate to note at the outset that the provisions of the Migration Act 1958 (Cth) (Act) to which I refer in these reasons are the provisions as they stood at the date on which the Tribunal made its decision. For ease of expression, I will refer to those provisions in the present tense.

Claims for protection

In a statutory declaration that formed part of his application for a Protection visa, the applicant said he was born in 1975 in the Jaffna region of Sri Lanka. In 1983 the applicant’s father took the applicant and his older brother to India to live with their grandmother because the army was killing…

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.

Keep reading for free

Create a free CaseChat account to read SZSUA v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 3345
Decision Date: 18 December 2015

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by SZSUA against the Minister for Immigration. The applicant sought to challenge a decision made by the Refugee Review Tribunal (RRT) concerning their claims for protection under the *Migration Act 1957* (Cth). The primary legal issue before the Federal Circuit and Family Court of Australia was whether the RRT had committed jurisdictional error in its decision-making process.

The court was required to determine whether the RRT had failed to comply with section 430(1) of the *Migration Act 1957* (Cth) by not setting out adequate reasons for its decision, including findings on material questions of fact and the evidence upon which those findings were based. The applicant contended that this failure constituted jurisdictional error.

The court reasoned that a mere failure to comply with the formal requirements of section 430(1) does not, in itself, amount to jurisdictional error. Instead, such a failure may provide grounds for inferring that the RRT made a jurisdictional error. Drawing on the High Court's decision in *Minister for Immigration and Multicultural Affairs v Yusuf*, the court explained that section 430(1) serves to ensure transparency in the RRT's decision-making, enabling dissatisfied parties and reviewing courts to understand the reasons for the decision and the factual basis upon which it was reached. The court noted that if the RRT fails to set out its findings, it may be inferred that it did not consider certain matters to be material, which could reveal an error of law or jurisdictional error, such as taking into account irrelevant considerations or failing to consider relevant ones.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The first ground is:1. The RRT failed to apply section 430 of the Migration Act 1957 (Cth).ParticularsIn dealing with the applicant’s claims for protection pursuant to section 36(2)(aa) of the Migration Act at paragraphs [80] and [81] of the decision, the Tribunal failed to set out the reasons for the decision. Subsection 430(1) of the Act provides:Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:(a)sets out the decision of the Tribunal on the review; and(b)sets out the reasons for decision; and(c)sets out the findings on any material questions of fact; and(d)refers to the evidence or any other material on which the findings of fact were based. As formulated, ground 1 does not disclose any jurisdictional error. That the Tribunal may not have complied with s.430(1) of the Act does not by itself constitute a jurisdictional error; at most, it provides grounds for drawing inferences about what the Tribunal did or did not do which, in turn, may reveal the Tribunal made a jurisdictional error. That is the effect of what the majority of the High Court held in Minister for Immigration and Multicultural Affairs v Yusuf in relation to the Tribunal’s failure to set out findings on any material question of fact as required by s.430(1) of the Act. The plurality said:[20]It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.[20] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 ([69]) (emphasis in original) Gleeson CJ said:[21]By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue.[21] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 331-332 ([10])