SZTEX v Minister for Immigration - [2014] FCCA 1881

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEX v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1881

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no question of principle.

Legislation:

Migration Act 1958, ss.36, 65, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

SZTEX

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1963 of 2013

Judgment of:

Judge Cameron

Hearing date:

31 July 2014

Date of Last Submission:

31 July 2014

Delivered at:

Sydney

Delivered on:

31 July 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1963 of 2013

SZTEX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of China who arrived in Australia on 17 September 2010 on a student guardian visa. On 19 June 2012 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that she feared persecution in China because she was perceived to be a Falun Gong practitioner. On 26 September 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Background facts

In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa. As summarised by the Tribunal, the applicant relevantly made the following claims:
a)in 2009 she was injured and her injury did not respond to standard treatment so her mother-in-law taught her some Falun Gong exercises to relieve the pain;
b)her mother-in-law had been practising Falun Gong for some years and had been detained in 2005 and 2007. For that reason she was reluctant to undertake the exercises but her mother-in-law told her that they were just another form of “qigong” exercise and they helped with her pain;
c)her mother-in-law thought that she had accepted Falun Gong and on 23 May 2009 invited four female Falun Gong practitioners to her home. Her mother-in-law said that the women were there to teach her the exercises but in reality they were there to persuade her to join Falun Gong. Coincidentally,…

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 1881
Decision Date: 31 July 2014

CaseChat Overview and Summary

The applicant, SZTEX, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision. The matter came before Judge Cameron of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection, specifically concerning the risk of persecution or harm should the applicant be returned to their country of origin. This involved a consideration of whether the AAT had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), including the assessment of the applicant's credibility and the objective country information.

Judge Cameron found that the AAT had made a jurisdictional error by failing to adequately consider all the evidence before it, particularly in relation to the applicant's stated fear of persecution. The Court held that the AAT's reasoning was not sufficiently detailed to demonstrate that it had properly engaged with the applicant's subjective claims and the objective country information in a way that satisfied the legal requirements for assessing a protection visa application. The Court applied the principles of administrative law concerning the duty to provide adequate reasons and the proper application of statutory criteria.

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

Orders