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SZTQP v MIBP

SZTQP v MIBP

Case [2015] FCCA 423 27 February 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQP & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 423

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether Tribunal failed to apply complementary protection criterion – whether the Tribunal asked itself the wrong question – whether the Tribunal’s decision was irrational or unreasonable – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R, 476

Migration Amendment (Complementary Protection) Act 2011 (Cth)

First Applicant:

Second Applicant:

Third Applicant:

SZTQP

SZTQQ

SZTQR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3071 of 2013

Judgment of:

Judge Nicholls

Hearing date:

30 October 2014

Date of Last Submission:

30 October 2014

Delivered at:

Sydney

Delivered on:

27 February 2015

REPRESENTATION

Counsel for the Applicants:

Ms T Baw

Solicitors for the Applicants:

Kinslor Prince Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 10 December 2013 and amended on 12 September 2014 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $6000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3071 of 2013

SZTQP

First Applicant

SZTQQ
Second Applicant

SZTQR
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) on the 10 December 2013 and amended on 12 September 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 November 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of protection visas to the applicants.
The following was in evidence before the Court:
1)A bundle of relevant documents filed by the Minister in these proceedings (the “Court Book” - “CB”).
2)I note, a number of affidavits were filed on behalf of the applicants. They did not seek to read them before the Court (see further below)

Background

The applicants’ written submissions provide…

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.

Continue reading SZTQP v MIBP

Details

AGLC: SZTQP v MIBP [2015] FCCA 423
Case: [2015] FCCA 423
Decision Date: 27 February 2015

CaseChat Overview and Summary

The applicant, SZTQP, sought judicial review of a decision made by the respondent, MIBP, concerning the applicant's eligibility for a disability support pension. The dispute centred on whether the applicant's medical conditions met the criteria for severe impairment under the relevant social security legislation. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the respondent had erred in law by failing to properly consider all of the evidence relating to the applicant's impairments, particularly in relation to the assessment of functional capacity and the application of the Impairment Tables. The Court was also required to determine whether the delegate had adequately considered the combined effect of the applicant's various medical conditions.

Judge Nicholls found that the delegate had failed to undertake a holistic assessment of the applicant's impairments and had not given sufficient weight to the evidence concerning the cumulative impact of the conditions. The Court reiterated the principle that all relevant evidence must be considered and that the Impairment Tables are to be applied in a manner that reflects the applicant's overall functional capacity. The delegate's decision was found to be affected by an error of law.

The Court set aside the decision of the respondent and remitted the matter to the respondent for reconsideration according to law.

Orders