SZTLA v Minister for IMMIRGATION - [2015] FCCA 540

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLA & ORS v MINISTER FOR IMMIRGATION & ANOR

[2015] FCCA 540

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

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.11.11, 44.12, 44.13

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 40
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46

First Applicant:

SZTLA

Second Applicant:

SZTLB

Third Applicant:

SZTLC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2609 of 2013

Judgment of:

Judge Nicholls

Hearing date:

23 February 2015

Date of Last Submission:

23 February 2015

Delivered at:

Sydney

Delivered on:

23 February 2015

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondent:

Ms R Krishnan of Australian Government Solicitor

ORDERS

The application made on 25 October 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The first and second applicants pay the first respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2609 of 2013

SZTLA

First Applicant

SZTLB

Second Applicant

SZTLC

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

I have before me today an application made to this Court on 25 October 2013 pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 September 2013, which affirmed the decision made by the delegate of the respondent Minister to refuse protection visas to the applicants.

The Issue

It is important to note that the application was set down for a hearing, pursuant to part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). That is, it is a “show cause” hearing.
In that light, the issue before the Court now is whether the grounds of the application raise an arguable case for the relief sought. In essence, the applicants seek that the Tribunal decision be quashed…

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 540
Decision Date: 23 February 2015

CaseChat Overview and Summary

The applicant, SZTLA, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant SZTLA a protection visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister, in assessing SZTLA's claims for protection, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Nicholls found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the risk of future persecution in their country of origin. The Court reasoned that a proper assessment of protection claims necessitates a thorough examination of all evidence presented by the applicant, including their subjective experiences and objective country information. The failure to give due weight to these elements constituted a failure to exercise the power conferred by the *Migration Act 1958* (Cth) according to law.

Consequently, the Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders