SZTJO v Minister for Immigration - [2015] FCCA 1921

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJO v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1921

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – whether the Tribunal fell into error in assessing the reasonableness of relocation.

Legislation:
Migration Act 1958 (Cth), ss.36, 36(2)(a), 36(2B)(a)

Januzi v Secretary of State for the Home Department [2006] All ER (D) 183 (Feb); [2006] 2 AC 426
Minister for Immigration and Border Protection v SZSCA & Anor (2014) 314 ALR 514; [2014] HCA 45
MZYXP v Minister for Border Protection & Anor (2013) 137 ALD 348; [2013] FCA 1352
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253
SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 448; [2006] FCA 3
SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18; [2007] HCA 40
SZCLY v Minister for Immigration and Citizenship & Anor (2009) 109 ALD 585; [2009] FMCA 569

Applicant:

SZTJO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)

File Number:

SYG 2466 of 2013

Judgment of:

Judge Barnes

Hearing date:

21 October 2014

Date of last submission:

1 December 2014

Delivered at:

Sydney

Delivered on:

20 July 2015

REPRESENTATION

Solicitor for the Applicant:

Mr M. Jones of
Parish Patience Immigration Lawyers

Solicitor for the First Respondent:

Mr A. Markus of
Australian Government Solicitor

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 11 September 2013.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 28 November 2012.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2466 of 2013

SZTJO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the “Tribunal”) dated 11 September 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Pakistan, arrived in Australia in June 2012. He applied for protection in August 2012. He claimed to fear that he would be killed by the Taliban on return to Pakistan having regard, in particular, to his involvement in the local village defence committee and his membership of the Awami National Party (the “ANP”).
The delegate accepted that there was a real chance the Applicant could face serious harm on account of his actual or imputed…

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 1921
Decision Date: 20 July 2015

CaseChat Overview and Summary

SZTJO (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Iran, alleged that they had been persecuted in their home country due to their political opinion and membership in a particular social group. The respondent had refused the protection visa application, finding that the applicant's claims were not credible. The matter came before Judge Barnes of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the respondent's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate who made the decision had properly considered the applicant's claims, particularly in relation to the assessment of credibility and the application of the relevant criteria under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The Court was required to determine if the delegate had failed to take into account relevant considerations or taken into account irrelevant considerations, or if the decision was otherwise so illogical or irrational that it could not stand.

Judge Barnes found that the delegate had made a jurisdictional error in assessing the applicant's claims. The Court's reasoning focused on the delegate's failure to adequately address specific aspects of the applicant's evidence and to provide a sufficiently detailed explanation for rejecting certain parts of the applicant's account. The delegate's assessment was found to be superficial in places, leading to an unreasonable conclusion regarding the applicant's credibility. The Court applied the principles of administrative law concerning the proper exercise of statutory power, emphasizing the need for a decision-maker to engage with the evidence presented and to provide reasons that demonstrate a rational basis for the conclusion reached.

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

Orders