SZTMX v Minister for Immigration - [2016] FCCA 1280

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMX v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1280

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal made any jurisdictional error by considering whether s.36(3) of the Migration Act 1958 (Cth) (Act) applied without first determining whether the applicant had a well-founded fear of persecution in his country of nationality or that the applicant faced a real risk of substantial harm if he were to return to his country of nationality – whether Tribunal correctly construed and applied s.36(3) of the Act to the circumstances of the case – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(3), 36(4), 36(5), 36(5A)

Cases cited:
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35
Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50
SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77
SZUDE v Minister for Immigration and Border Protection [2015] FCA 1202
V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408

Applicant:

SZTMX

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2373 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

28 April 2016

Delivered at:

Sydney

Delivered on:

27 May 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms R Krishnan of

Australian Government Solicitor

ORDERS

The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2373 of 2014

SZTMX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (protection visa).

The applicant’s claims for protection

In a statement dated 16 October 2012 that formed part of his application for a protection visa,[1] the applicant, a citizen of Nepal, claimed he is a member of the pro-monarchy Panchayat Party, which later became the Rastriya Prajatantra Party (National Democratic Party) (RPP).
[1] CB26-29
The applicant claimed he worked as a party worker in the RPP village level committee. He also claimed that he was a secondary school teacher and that, after the Maoists commenced their “People’s war”, armed Maoist cadres often came to the school in which he taught and attempted to persuade the teachers and students to join the Maoists. As a party worker in the RPP village level committee, the applicant’s job was to educate the people by distributing leaflets and pamphlets and expanding the party in his area by increasing the number of supporters. In 1997 the applicant became a member of the RPP.
The Maoists were “not letting people live a peaceful 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: [2016] FCCA 1280
Decision Date: 27 May 2016

CaseChat Overview and Summary

The applicant, SZTMX, 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 assessment of SZTMX's claims for protection, specifically whether they had a well-founded fear of persecution. 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 their assessment of SZTMX's claims, particularly in relation to the credibility of the applicant's account and the assessment of the risk of harm should they be returned to their country of origin. This involved a consideration of whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), including the assessment of whether SZTMX would be subject to persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

Judge Manousaridis found that the delegate had failed to adequately consider certain aspects of SZTMX's evidence, particularly concerning the alleged persecution experienced. The Court determined that the delegate's assessment of credibility was not sufficiently reasoned and that the delegate had not properly engaged with the entirety of the evidence presented. Consequently, the Court concluded that the decision to refuse the protection visa was affected by jurisdictional error. The Court made orders setting aside the decision under review and remitting the application for a protection visa to the Minister for redetermination according to law.

Orders