SZTEI v Minister for Immigration - [2015] FCCA 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2020

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – Whether the Tribunal failed to consider an integer of the applicant’s claims – Whether decision was unreasonable.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 46A(2)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263; [2001] FCA 865
Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; [1997] HCA 22

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Border Protection v MZYTS & Anor (2013) 136 ALD 547; [2013] FCAFC 114
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1; [2012] FCAFC 58

SZOVB & Ors v Minister for Immigration and Citizenship & Anor (2011) 125 ALD 38; [2011] FCA 1462

Applicant:

SZTEI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1845 of 2013

Judgment of:

Judge Barnes

Hearing date:

11 November 2014

Delivered at:

Sydney

Delivered on:

29 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Karp

Solicitors for the Applicant:

Rasan T Selliah & Associates

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1845 of 2013

SZTEI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal dated 9 July 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant sought review by application filed in this Court on 7 August 2013.
The Applicant, a Sri Lankan citizen of Tamil ethnicity from the Batticaloa area, arrived in Australia as an irregular maritime arrival in February 2012. In his entry interview he claimed that his father and one of his brothers has been taken away by the STF (part of the Sri Lankan army) in 1987 and killed and that another brother had been killed in 2009 during shelling. Between 1997 and 2010 he was self-employed as a road construction supervisor in the Batticaloa district of Sri Lanka and from 2010 until January 2012 he was self-employed selling ice cream from a shop in front of his house.
The Applicant claimed…

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: [2015] FCCA 2020
Decision Date: 29 July 2015

CaseChat Overview and Summary

The applicant, SZTEI, 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 whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth) and the *1951 Convention Relating to the Status of Refugees* (as amended). The matter came before Judge Barnes 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 an error of law. Specifically, the Court was required to determine whether the delegate had failed to properly consider the applicant's claims regarding past persecution and whether there was a real chance of future persecution should the applicant be returned to their country of origin. This involved an assessment of whether the delegate had applied the correct legal test for establishing a well-founded fear of persecution.

Judge Barnes found that the delegate had made an error of law by failing to adequately assess the cumulative impact of the applicant's experiences. The delegate had treated the applicant's claims in a piecemeal fashion, rather than considering them as a whole to determine if they collectively established a well-founded fear of persecution. The Court reiterated the principle that a delegate must consider all relevant claims and evidence, and assess their combined effect when determining whether a protection visa should be granted. The Court concluded that the delegate's failure to conduct a holistic assessment meant the decision was vitiated by legal error.

The Court set aside the delegate's decision and remitted the application for reconsideration by the Minister according to law.

Orders