SZTCH v Minister for Immigration - [2013] FCCA 1895

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCH v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1895

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.36

GJ & Ors v Secretary of State for the Home Department [2013] UKUT 00319 (IAC)

Minister for Immigration v SZQPA [2012] FCA 1025
SZQPA v Minister for Immigration & Anor [2012] FMCA 123

Applicant:

SZTCH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1680 of 2013

Judgment of:

Judge Driver

Hearing date:

18 November 2013

Delivered at:

Sydney

Delivered on:

18 November 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms M Stone

DLA Piper

INTERLOCUTORY ORDERS

The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1680 of 2013

SZTCH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 26 June 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant him a protection visa. The applicant is from Sri Lanka and had made claims of persecution based upon a fear of imputed political opinion as a Liberation Tigers of Tamil Eelam (LTTE) sympathiser.
The applicant applied to the Minister’s Department for a protection visa on 15 November 2012. The delegate refused that application on 4 April 2013. The applicant sought review of that decision before the Tribunal. He was invited to a hearing before the Tribunal and attended on 6 June 2013. He was represented by lawyers who made a lengthy submission on his behalf. The Tribunal, in its decision, discusses what occurred at the hearing.
It is apparent that the Tribunal doubted at the hearing the applicant’s claims that the Sri Lankan authorities would have an interest in him because of any imputed political opinion. The Tribunal had regard to country information about the applicant’s local area and the circumstances of returnees. An issue in the applicant’s case was that he had left Sri Lanka illegally. Another issue was the applicant’s concern that he would be identified on return as a failed asylum seeker.
In its findings and reasons, the Tribunal rejected the applicant’s factual claims which supported his assertion that he would be of adverse interest to the Sri Lankan authorities. The Tribunal considered whether the applicant would be of adverse interest to the authorities as a failed asylum seeker. The Tribunal concluded that he would not.

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.

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Details

Case: [2013] FCCA 1895
Decision Date: 18 November 2013

CaseChat Overview and Summary

The applicant, SZTCH, 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 have been persecuted in Iran due to his alleged involvement with a political organisation and his perceived association with a particular religious group. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he had not established a well-founded fear of persecution. The matter came before Driver J in the Federal 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. This required the Court to consider whether the delegate had properly assessed the applicant's claims of persecution, including the credibility of his evidence and the objective reasonableness of his fear. Specifically, the Court had to determine if the delegate had failed to consider relevant evidence, had taken irrelevant considerations into account, or had otherwise acted in a manner that vitiated the lawfulness of the decision-making process.

Driver J found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's evidence regarding his alleged political activities and the potential consequences of his perceived religious affiliation. The Court held that the delegate had adopted an overly critical approach to the applicant's evidence, failing to give sufficient weight to corroborating material and making findings that were not supported by the evidence before her. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and provide adequate reasons for their findings, particularly when assessing claims of persecution under the Migration Act 1958 (Cth).

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