SZTMP v Minister for Immigration & Border Protection - [2015] FCCA 537

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMP v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2015] FCCA 537

Catchwords:
MIGRATION – Whether the Refugee Review Tribunal was biased – whether the Refugee Review Tribunal was required to consider relocation – whether the Refugee Review Tribunal made a typographical error – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SZLPH v Minister for Immigration & Citizenship [2008] FCA 744

Applicant:

SZTMP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2749 of 2013

Judgment of:

Judge Emmett

Hearing date:

10 March 2015

Date of Last Submission:

10 March 2015

Delivered at:

Sydney

Delivered on:

10 March 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Nepali interpreter

Counsel for the Respondents:

Mr Tim Reilly

Solicitors for the Respondents:

DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2749 of 2013

SZTMP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal, dated 2 October 2013 and handed down on the same date (“the RRT”).
The applicant claims to be a citizen of Nepal who fears harm from Maoists in Nepal.
The applicant’s claims and the decision of the RRT are briefly summarised by counsel for the first respondent in submissions filed on 3 March 2015 as follows:
“2. The Applicant is a citizen of Nepal who arrived in Australia on 4 November 2010, travelling on the passport of a different person. He applied for the protection visa on 15 June 2012: CB 1-33. He was invited to an interview by the delegate, which he did not attend, and the delegate refused the visa on 26 September 2012: CB 46-60. The Applicant applied to the Tribunal for review on 15 October 2012: CB 61-66. The Tribunal held a hearing on 13 September 2013: CB 82-84.
3. The Applicant claimed to fear persecution in Nepal from Maoists. He claimed that Maoists burned down his family house in Dharapani in 2003 and expelled his family from their land. He claimed he then moved with his family to Beni and…

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 537
Decision Date: 10 March 2015

CaseChat Overview and Summary

The applicant, SZTMP, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The dispute concerned the applicant's claim for protection based on a fear of persecution in their country of origin. The matter was heard by Emmett J in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims of persecution, particularly in light of the evidence presented and the relevant criteria under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). This involved determining if the delegate had made any jurisdictional error in the assessment of the applicant's credibility and the objective circumstances of their claimed fear.

Emmett J's reasoning focused on the principles of administrative decision-making and the requirements for a lawful assessment of a protection visa application. The Court examined whether the delegate had adequately considered all relevant information, including the applicant's personal circumstances and the country information pertaining to their alleged fear. The judge applied the established legal principles regarding the assessment of credibility and the evaluation of risk, ensuring that the delegate's decision was not based on an erroneous understanding of the facts or the law.

The Court found that the delegate had made a jurisdictional error in the assessment of the applicant's claims. Consequently, Emmett J set aside the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders