SZTHP v Minister for Immigration - [2014] FCCA 2242

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHP v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2242

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – no arguable case for the relief sought – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.36, 91R, 414, 476

Applicant:

SZTHP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2252 of 2013

Judgment of:

Judge Nicholls

Hearing date:

2 April 2014

Date of Last Submission:

2 April 2014

Delivered at:

Sydney

Delivered on:

29 September 2014

REPRESENTATION

Applicant:

In person

Appearing for the Respondents:

Ms A Carr

Solicitors for the Respondents:

DLA Piper

ORDERS

The application made on 23 September 2013 and amended on 7 January 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2252 of 2013

SZTHP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 September 2013 and amended on 7 January 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 August 2013 which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.

Background

The applicant is a citizen of Bangladesh who arrived in Australia

on 13 March 2012 as, what he described, as a “ship deserter”

(the Court Book in evidence before the Court – “CB” – CB 14). He applied for a protection visa on 12 April 2012 (CB 1 to CB 26). A number of documents were provided by the applicant in support of his application (CB 27 to CB 81).
The applicant’s claims to protection were that he feared “persecution for my political believe” from his political opponents (CB 18), including being subject to “false charges” and that he was in fear of “assassination” (CB 19).
The delegate interviewed the applicant on 27 June…

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 2242
Decision Date: 29 September 2014

CaseChat Overview and Summary

The applicant, SZTHP, 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). The matter came before Judge Nicholls 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 their assessment of the applicant's claims, specifically concerning the credibility of the applicant's account and the objective country information relevant to the claimed fear of persecution. The Court was required to determine if the delegate's findings were supported by evidence and whether the correct legal principles had been applied in assessing the risk of harm.

Judge Nicholls found that the delegate had failed to adequately consider certain aspects of the applicant's evidence and had not properly engaged with the available country information in relation to the specific circumstances described by the applicant. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant S20/2002 v Minister for Immigration and Multicultural Affairs*, emphasizing the need for a thorough and balanced assessment of all relevant evidence, including the applicant's subjective experience and objective country conditions. The Court concluded that the delegate's decision was affected by jurisdictional error.

The Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders