SZTKF v MIBP - [2014] FCCA 282

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZATB v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 282

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal – protection visa application –whether judicial review proceedings ought to be adjourned pending outcome of litigation in the High Court of Australia.

PRACTICE AND PROCEDURE – Adjournment – whether judicial review proceedings ought to be adjourned pending outcome of litigation in the High Court of Australia.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.42

Federal Circuit Court Rules 2001 (Cth), r.1.03

Migration Act 1958 (Cth), ss.5(1), 5AA

Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth)
Migration Regulations 1994 (Cth), Schedule 2, cl.866.222

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Applicant:

WZATB

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 193 of 2013

Judgment of:

Judge Antoni Lucev

Hearing date:

19 February 2014

Date of Last Submission:

19 February 2014

Delivered at:

Perth

Delivered on:

19 February 2014

REPRESENTATION

Counsel for the Applicant:

In person (with interpreter)

Counsel for the Respondents:

Mr A Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The title of the first respondent is amended to the ‘Minister for Immigration and Border Protection’.
The hearing listed at 2.15pm on 24 February 2014 is vacated.
The matter is adjourned for directions on a date to be advised administratively following the outcome of proceedings S297 of 2013 in the High Court.
Either party has liberty to apply to the Court for a listing for further directions. The other party must be given 5 days clear notice of the time, date and place of that listing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 193 of 2013

WZATB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Application

This is an application by the Minister for Immigration & Border Protection (“Minister”) for the vacation of the hearing date of an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) affirming a decision of the Minister’s delegate not to grant the applicant a Protection Class XA visa (“Protection Visa”).
The hearing of the application for judicial review is presently listed for 24 February 2014 at 2.15pm.
The applicant is an unauthorised maritime arrival as defined in ss.5(1) and 5AA of the Migration Act 1958 (Cth) (“Migration Act”).
The Minister seeks the vacation of the 24 February 2014 hearing date because:
a)the applicant is an unauthorised maritime arrival;
b)on 14 December 2013 the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth) (“Unauthorised Maritime Arrival Regulation”), inserted into Schedule 2 to the Migration Regulations1994 (Cth) (“Migration Regulations”) a clause, being cl.866.222 of Schedule 2 of the Migration Regulations, which has the effect that a Protection Visa cannot be granted to a person who is an unauthorised maritime arrival where the application for…

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 282
Decision Date: 19 February 2014

CaseChat Overview and Summary

The applicant, SZTKF, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (MIBP) to refuse to grant her a protection visa. The dispute concerned whether SZTKF met the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in finding that SZTKF did not hold a well-founded fear of persecution for reasons of her membership of a particular social group, specifically, women who have been subjected to domestic violence in her country of origin. The Court was required to consider whether the delegate had properly assessed the evidence presented by SZTKF regarding the prevalence and nature of domestic violence in her home country and whether this evidence established a real chance of harm amounting to persecution.

Judge Antoni Lucev found that the delegate had failed to adequately consider the evidence of domestic violence and its potential impact on SZTKF. The Court reasoned that the delegate's assessment was too narrow and did not sufficiently engage with the specific circumstances described by SZTKF. The legal principle applied was that a delegate must conduct a thorough and holistic assessment of the evidence, taking into account the particular vulnerabilities of the applicant and the prevailing conditions in their country of origin, to determine if a well-founded fear of persecution exists. The Court concluded that the delegate's decision was affected by jurisdictional error.

The Court set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders