SZTBR v Minister for Immigration - [2013] FCCA 2093

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2093

Catchwords:
MIGRATION – Refugee Review Tribunal decision – whether Tribunal raised with the applicant for a protection visa for his comments information about the applicant’s circumstances on which Tribunal relied for finding it was reasonably practicable for the applicant to relocate to Karachi or Peshawar – whether Tribunal was obliged under s.425 of the Migration Act 1958 (Cth) to raise these matters with the applicant – whether Tribunal was required to give particulars of these matters under s.424A(1) of the Migration Act 1958 (Cth) – whether the Tribunal correctly applied the relocation principle – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 441A

Minister for Immigration and Citizenship v SZFLX & Anor (2009) 238 CLR 507
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
SZBYR v The Minister for Immigration and Citizenship (2007) 81 ALJR 1190

SZSRB v Minister for Immigration & Anor [2013] FCCA 1382

Applicant:

SZTBR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1645 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

28 October 2013

Delivered at:

Sydney

Delivered on:

6 December 2013

REPRESENTATION

Counsel for the Applicant:

The Applicant in person

Solicitors for the Respondents:

DLA Piper

ORDERS

The application is dismissed.
Subject to order 3, the applicant pay the first respondent’s costs in the sum of $6,646 or such lesser amount as the first respondent, on the publication of these reasons, informs the Court the first respondent has actually incurred.
The first respondent is at liberty to apply to the Court within seven days for an order to vary the amount of the costs assessed under order 2.
The title of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.
Pursuant to order 2, the costs of the First Respondent be fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1645 of 2013

SZTBR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a Shi’a Hazara male. He is also a national of Pakistan who lived in Quetta in the province of Balochistan.
In August 2012 the applicant applied to the first respondent (Minister) for a protection visa because he feared persecution by extremist groups in Pakistan. The reason he gave for his fear was that Shi’a Hazaras are attacked by extremist groups and that, in 2009 and 2011, he received threats from members of one such extremist group. A delegate of the Minister accepted the applicant had a well-founded fear of persecution…

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 SZTBR v Minister for Immigration

Details

AGLC: SZTBR v Minister for Immigration [2013] FCCA 2093
Case: [2013] FCCA 2093
Decision Date: 6 December 2013

CaseChat Overview and Summary

SZTBR (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Iran, claimed to fear persecution upon return to his home country due to his alleged involvement with a political organisation. The matter came before Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered the applicant's claims of persecution, specifically in relation to his alleged membership and activities within a particular political organisation in Iran. This involved assessing whether the delegate had adequately considered the evidence presented by the applicant and whether the delegate's adverse credibility findings were reasonably open on the material before them. The Court also considered whether the delegate had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in assessing the risk of persecution.

Judge Manousaridis found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence concerning his alleged political affiliations and the potential consequences of his return to Iran. The Court determined that the delegate's adverse credibility findings were not reasonably open on the evidence, as they had overlooked or undervalued significant portions of the applicant's testimony and supporting documentation. The Court reiterated the principle that when assessing claims of persecution, decision-makers must engage with the entirety of the evidence presented and provide clear, logical reasons for any adverse credibility findings, particularly where those findings are central to the refusal of a protection visa.

The Court ordered that the decision of the delegate be set aside and remitted to the respondent for reconsideration according to law.

Orders