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SZSZT v Minister for Immigration

SZSZT v Minister for Immigration

Case [2018] FCCA 1663 17 August 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZT v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1663

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed – certificate purportedly issued under s.438 of the Migration Act 1958 (Cth) – certificate invalid – whether the Tribunal erred in respect of the certificate considered – no jurisdictional error.

Legislation:

Evidence Act 1995 (Cth)

Migration Act 1958 (Cth), ss.36, 375A, 422B, 424AA, 424A, 425, 438, 440

Cases cited:

BEG15 v Minister for Immigration [2017] FCAFC 198

Burton v Minister for Immigration (2005) 149 FCR 20; [2005] FCA 1455

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration v Singh (2016) 244 FCR 305; [2016] FCAFC 183

Minister for Immigration v SZMTA & Anor [2018] HCATrans 34

Minister for Immigration v WZARH (2015) 256 CLR 326

Minister for Immigration v Yusuf (2001) 206 CLR 323

MZAFZ v Minister for Immigration [2016] FCA 1081

Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1

Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82

SZMTA v Minister for Immigration [2017] FCA 1055

Applicant:

SZSZT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 605 of 2016

Judgment of:

Judge Driver

Hearing dates:

29 March, 21 June, 25 June 2018

Delivered at:

Sydney

Delivered on:

17 August 2018

REPRESENTATION

Counsel for the Applicant:

Ms E Grotte

Solicitors for the Applicant:

Michaela Byers, solicitor

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application as amended by leave in court on 29 March 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 605 of 2016

SZSZT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 February 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.

The applicant’s claims

The applicant is an ethnic Tamil who was born in 1966 in a named location in Udappu, Puttalam, Sri Lanka. He is a citizen of Sri Lanka. He is married with three children. His wife and children still reside in Udappu.
The applicant applied for a protection (Class XA) visa on 9 September 2012, attaching a statutory declaration.[1] Both the application and the statutory declaration set out his original claims to a protection visa.
[1] Court Book (CB) 28-30
On 18 October 2012 the delegate refused a protection visa on the basis that the relevant criteria under either s.36(2)(a) or s.36(2)(aa) of the Migration Act1958 (Cth) (Migration Act) were not satisfied.[2]
[2] the delegate’s reasons are set out at CB 91-103
The applicant had…

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.

Continue reading SZSZT v Minister for Immigration

Details

AGLC: SZSZT v Minister for Immigration [2018] FCCA 1663
Case: [2018] FCCA 1663
Decision Date: 17 August 2018

CaseChat Overview and Summary

The applicant, SZSZT, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant, who is a citizen of Iran, claimed to fear persecution upon return to Iran due to his alleged involvement in political activities against the Iranian government. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he would not be at risk of persecution. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims of past persecution and the real chance of future persecution, and whether the delegate's adverse credibility findings were reasonably open on the evidence. The applicant also contended that the delegate had failed to adequately assess the risk of harm from state actors and non-state actors in Iran.

Judge Driver found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's claims regarding past persecution. The delegate's assessment of these claims was found to be superficial and did not engage with the substance of the evidence presented by the applicant. Furthermore, the Court determined that the delegate's adverse credibility findings were not reasonably open on the evidence before them, as they relied on assumptions and misinterpretations of the applicant's testimony. Consequently, the delegate's decision was vitiated by jurisdictional error.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for redetermination according to law.

Orders