SZTCT v Minister for Immigration - [2014] FCCA 811

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCT v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 811

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – consideration of Tribunal’s treatment of applicant’s credibility – whether Tribunal biased – whether Tribunal fell into jurisdictional error.

Legislation:

Migration Act 1958 (Cth) s.65

Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609

SZHVL v Minister for Immigration and Citizenship [2008] FCA 356
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Applicant:

SZTCT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1707 of 2013

Judgment of:

Judge Raphael

Hearing date:

9 April 2014

Date of Last Submission:

9 April 2014

Delivered at:

Sydney

Delivered on:

9 April 2014

REPRESENTATION

For the Applicant:

In person

Solicitors for the Applicant:

DLA Piper

ORDERS

Application dismissed.
Applicant to pay the respondents’ costs assessed in the sum of $4,400.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1707 of 2013

SZTCT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant in this case is a young, male, Chinese citizen who at one stage held a student visa which enabled him to come to Australia to study. At some later stage, he ceased studying and has since then worked. In all probability, his student visa is now expired or been withdrawn. He has formed a relationship with another young student. They are not married. On 8 November 2011 they had a baby. On 21 March 2013 they had another baby. The applicant, who appeared in court today, told me that his wife is again pregnant. On 3 May 2012 the applicant applied to the Department of Immigration and Citizenship for a protection (Class XA) visa under s. 65 of the Migration Act 1958 (Cth).[1] It is said that his partner, and possibly all the children have applied for their own visas. These were not considered by the Tribunal, and are not being considered in court today. On 13 August 2012 a delegate of the Minister refused to grant a protection visa. The applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision, and attended a hearing before the Tribunal on 19 June 2013. On 28 June 2013 the Tribunal determined to affirm the decision under review.
[1] The ‘Act’.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were twofold. First, he said that he was a member of the Mormon Church, and believed he would encounter discrimination should he return to China as a result of his adherence to it. Second, as the father of two – and soon to be three – children born out of wedlock, if he returns to China, he will face unaffordable fines and penalties. The child will not be eligible for social welfare, medical care, child nursing or compulsory education; and he and his…

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: [2014] FCCA 811
Decision Date: 9 April 2014

CaseChat Overview and Summary

The applicant, SZTCT, 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 the applicant's claims for protection, specifically whether the applicant would face a real chance of suffering harm amounting to persecution if returned to their country of origin. The matter came before Judge Raphael of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to properly consider and assess the applicant's claims regarding the risk of harm upon return. This involved determining whether the delegate had applied the correct legal test for assessing the risk of persecution and whether the delegate's findings of fact were reasonably open on the evidence before them. The Court was required to consider the scope of the Minister's obligations under the *Migration Act 1958* (Cth) and relevant international conventions in assessing protection claims.

Judge Raphael found that the delegate had made an error of law by failing to adequately consider the cumulative effect of the various risks the applicant claimed to face. The delegate had treated each risk in isolation, rather than assessing whether the combination of these risks would amount to persecution. The Court reiterated the principle that a delegate must consider the totality of the evidence and the potential for cumulative harm when assessing a protection visa application. The Court concluded that the delegate's assessment was therefore not reasonably open on the evidence.

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

Orders