SZTMW v Minister for Immigration - [2014] FCCA 1818

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMW v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1818

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – whether the Tribunal decision is vitiated by an apprehension of bias considered.

Legislation:

Migration Act 1958 (Cth), s.91R

Ebner v Official Trustee (2000) 75 ALJR 277, (2000) 205 CLR 337
Ex parte H, NADH of 2001 v Minister for Immigration (2004) 214 ALR 264
Johnson v Johnson (2000) 201 CLR 488
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Minister for Immigration v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SZJBD v Minister for Immigration (2009) 179 FCR 109
SZRUI v Minister for Immigration [2013] FCAFC 80

SZTMH v Minister for Immigration & Anor [2014] FCCA 1807
VFAB v Minister for Immigration (2003) 131 FCR 102

Applicant:

SZTMW

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2772 of 2013

Judgment of:

Judge Driver

Hearing date:

13 August 2014

Delivered at:

Sydney

Delivered on:

29 August 2014

REPRESENTATION

Solicitors for the Applicant:

Mr C McArdle

McArdle Legal

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

DLA Piper

ORDERS

The application filed on 11 November 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2772 of 2013

SZTMW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 12 October 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China (Fujian and later Jianxi Provinces) and had made claims of persecution based upon his Roman Catholic faith. The following statement of background facts is derived from the Minister’s outline of written submissions filed on 12 August 2014.
The applicant is a citizen of China who arrived in Australia on 28 July 2012[1]. He applied for a protection visa on 22 October 2012[2]. The Minister’s delegate interviewed the applicant on 26 February 2013[3]. The delegate refused the visa on 4 March 2013[4]. The applicant applied to the Tribunal for review on 27 March 2013[5]. The Tribunal held hearings on 6 September 2013[6] and 3 October 2013[7].
[1] Court Book (CB) 108 [13]
[2] CB 1-33
[3] CB 47.5
[4] CB 37-56
[5] CB 58-64
[6] CB 77-79
[7] CB 94-95
The applicant claimed to fear persecution in China for reason of his religion. He claimed to be Roman Catholic, and that he assisted a nun in holding underground bible study classes in 2011. He claimed he was arrested in March 2012, detained for ten days and beaten. He claimed that the police continued to investigate him so he decided to come…

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.

Keep reading for free

Create a free CaseChat account to read SZTMW v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCCA 1818
Decision Date: 29 August 2014

CaseChat Overview and Summary

The applicant, SZTMW, 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 the Minister's assessment of whether the applicant would be a person to whom Australia has protection obligations under the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims of persecution, specifically in relation to the risk of harm from non-state actors and the applicant's ability to obtain protection from the authorities in their country of origin. The court was required to determine if the delegate's findings were supported by evidence and if the delegate had applied the correct legal principles in assessing the risk of harm.

Judge Driver found that the delegate had failed to adequately consider the evidence relating to the applicant's fear of harm from non-state actors and had not properly assessed the availability of effective protection from the authorities in the applicant's country of origin. The court applied the principles established in cases concerning the assessment of protection claims, emphasising the need for a thorough and evidence-based evaluation of the applicant's subjective fears and the objective realities of the situation in their home country. The delegate's decision was found to be affected by jurisdictional error.

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

Orders