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SZSWK v Minister for Immigration

SZSWK v Minister for Immigration

Case [2015] FCCA 1315 27 May 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSWK v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1315

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal affirming decision of delegate of Minister for Immigration and Border Protection to refuse to grant applicant a Protection (Class XA) visa – whether Tribunal failed to consider claims made by applicant – whether Tribunal committed jurisdictional error by limiting applicant’s claims to political grounds and not religious grounds – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R(2)

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Ministerfor Immigration and Citizenship v SZRMA (2013) 219 FCR 287
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

NABE vMinister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Shumilov & Anor v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 487

Applicant:

SZSWK

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1118 of 2013

Judgment of:

Judge Lloyd-Jones

Hearing date:

21 February 2014

Delivered at:

Sydney

Delivered on:

27 May 2015

REPRESENTATION

Counsel for the Applicant:

J.R. Young

Solicitors for the Applicant:

Simon Diab & Associates

Solicitor for the First Respondent:

L. Weston of Minter Ellison

The Second Respondent:

The Second Respondent filed a submitting notice.

ORDERS

The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application, as amended, be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSWK.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1118 of 2013

SZSWK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application filed on 18 June 2013 under the Migration Act 1958 (Cth) (the “Migration Act”), seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 17 April 2013 affirming the decision of a delegate of the Minister for Immigration and Border Protection (formerly the Minister for Immigration and Citizenship) (the “Minister”) not to grant the applicant a Protection (Class XA) visa.
The solicitors for the Minister filed a folder which was indexed, labelled and paginated, containing all…

Details

AGLC: SZSWK v Minister for Immigration [2015] FCCA 1315
Case: [2015] FCCA 1315
Decision Date: 27 May 2015

CaseChat Overview and Summary

The applicant, SZSWK, 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 the Minister's assessment of whether SZSWK would be a person to whom Australia has protection obligations under the *Migration Act 1958* (Cth). The matter came before Lloyd-Jones J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider, or adequately consider, the evidence relating to the applicant's alleged fear of persecution by non-state actors in their country of origin. Specifically, the Court was asked to determine if the delegate's assessment of the risk of harm from these non-state actors was reasonable and based on a proper understanding of the evidence presented.

Lloyd-Jones J reasoned that the delegate's decision-making process had failed to properly engage with the evidence concerning the risk posed by non-state actors. The Court applied the principles of administrative law, emphasizing that a decision-maker must consider all relevant evidence and provide reasons that adequately explain the basis for their findings. The delegate's reasons did not demonstrate a sufficient consideration of the specific threats alleged by the applicant from these groups, leading to an apprehension that the delegate had not properly assessed the risk of persecution.

The Court found that the delegate's decision was affected by an error of law. Consequently, Lloyd-Jones J set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders