SZTPJ v Minister for Immigration - [2015] FCCA 1992

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPJ v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1992

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – Whether Tribunal erred in failing to make inquiries – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.91R(3), 424A, 426(2), 426(3)

Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI & Anor (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 75 ALJR 982; [2001] HCA 28
SZTKV v Minister for Immigration and Border Protection [2014] FCA 903

Applicant:

SZTPJ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2995 of 2013

Judgment of:

Judge Barnes

Hearing dates:

23 October 2014, 13 November 2014, 4 December 2014

Delivered at:

Sydney

Delivered on:

29 July 2015

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The Application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2995 of 2013

SZTPJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal dated 7 November 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Bangladesh, arrived in Australia in May 2011. He applied for a protection visa in August 2011. In essence, the Applicant claimed to fear harm if he returned to Bangladesh because of his political opinion as a member of the Bangladesh National Party (the “BNP”) and his religion as Hindu.
He claimed that he joined the BNP in 2005 and was joint secretary of the BNP for a particular area from 2005 to 2011, although he also claimed he worked and lived in South Korea from 2006 to 2011.
The Applicant claimed he was attacked by the members of the Awami League (the “AL”) in 2006 and fled to Korea. He claimed he returned to Bangladesh in 2010 to see his sick mother in hospital, but did not return to his home town. He claimed that after he returned to Korea he heard that Muslim terrorists had assaulted his sister and that she had committed suicide as a result. He claimed that his father’s business was destroyed and that his brother was tortured after he reported the assault on his sister. He claimed the police would not help his family.
The Applicant claimed that he returned to Bangladesh in 2011. In his visa application the Applicant claimed that he was arrested by…

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 1992
Decision Date: 29 July 2015

CaseChat Overview and Summary

The applicant, SZTPJ, 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 the applicant's claims for protection, specifically whether the applicant would face persecution or harm if returned to their country of origin. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims of past persecution and fear of future persecution, particularly in light of the country information available at the time of the decision. This involved determining whether the delegate had adequately addressed the specific vulnerabilities and experiences articulated by the applicant and whether the assessment of the risk of harm was reasonable and supported by the evidence.

Judge Barnes found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding past persecution and the specific risks they would face upon return. The Court applied the principles of administrative law, emphasizing the need for a decision-maker to engage with and properly assess all relevant evidence. The delegate's failure to give sufficient weight to certain aspects of the applicant's testimony and to adequately address the country information in relation to those specific claims led to the conclusion that the decision was affected by jurisdictional error. The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders