SZTRN v Minister for Immigration - [2014] FCCA 1927

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1927

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), ss.36, 91R

Barakat v Goritsas(No 2) [2012] NSWCA 36
Minister for Immigration v Jia Legeng (2001) 205 CLR 507

SZBEL v Minister for Immigration (2006) 228 CLR 152

SZTMH v Minister for Immigration & Anor [2014] FCCA 1807
SZTMW v Minister for Immigration & Anor [2014] FCCA 1818
SZTKR v Minister for Immigration & Anor [2014] FCCA 1705

First Applicant:

SZTRN

Second Applicant:

SZTRO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3161 of 2013

Judgment of:

Judge Driver

Hearing date:

26 August 2014

Date of last submissions:

4 September 2014

Delivered at:

Sydney

Delivered on:

19 September 2014

REPRESENTATION

Solicitors for the Applicant:

Mr C McArdle

McArdle Legal

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 18 December 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3161 of 2013

SZTRN

First Applicant

SZTRO

Second 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 25 November 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants. The first applicant (the applicant male) is the partner of the second applicant (the applicant female). The relevant protection claims were made by the first applicant. References in this judgment to “the applicant” are intended to be references to him. The following statement of background facts is derived from the Minister’s outline of legal submissions filed on 19 August 2014.
The first applicant is a 25 year old citizen of the People’s Republic of China (Fujian Province) who first arrived in Australia on 1 September 2006 on a student visa[1]. The second applicant is a 23 year old citizen of China who first arrived in Australia on 6 May 2008 on a student visa[2]. On 9 July 2013, after the first applicant’s student visa had expired and he was located and detained as an unlawful non-citizen, he lodged the application for a protection visa and identified the second applicant as a member of his family unit[3].
[1] Court Book (CB) 1, 13, 138, 192 [1]
[2] CB 26, 29 139, 192 [2]
[3] CB 1-44
The first applicant claimed to fear persecution in China based upon[4]:
a)his religion as a Catholic who had been brought up by, and associated with, underground Catholics in Fujian province in China; and
b)his membership of a particular social group, being part…

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: [2014] FCCA 1927
Decision Date: 19 September 2014

CaseChat Overview and Summary

The applicant, SZTRN, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant, who is a citizen of Iran, claimed to fear persecution if returned to Iran due to his alleged involvement in political activities against the Iranian government. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he would not be at risk of persecution. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate had failed to adequately assess the applicant's claims of past persecution and the real chance of future persecution, and whether the delegate had properly considered all relevant information in making their decision. The applicant argued that the delegate had made findings of fact that were not supported by the evidence and had failed to give proper weight to certain aspects of his evidence.

Judge Driver found that the delegate had made a jurisdictional error in assessing the applicant's claims. The Court held that the delegate had failed to properly consider the applicant's evidence regarding his alleged political activities and the potential consequences of his return to Iran. The delegate's adverse credibility findings were found to be based on an incomplete and unbalanced assessment of the evidence. The Court reiterated the principle that when assessing a claim for a protection visa, a delegate must undertake a holistic and balanced assessment of all the evidence presented, including any evidence that might support the applicant's claims, even if other evidence might undermine them.

Consequently, Judge Driver quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination in accordance with the law.

Orders