SZTRY v Minister for Immigration - [2015] FCCA 169

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRY v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 169

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to consider all the evidence before it and/or all the elements of the Applicant’s claim – whether the Tribunal exceeded its jurisdiction by failing to warn or advise the Applicant that he had a right to claim legal professional privilege in respect of communications between himself and his lawyers – no jurisdictional error.

Legislation:

Evidence Act 1995 (Cth), s.132
Migration Act 1958 (Cth), ss.5, 414, 422B, 424, 433

Applicant:

SZTRY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3217 of 2013

Judgment of:

Judge Barnes

Hearing date:

5 September 2014

Delivered at:

Sydney

Delivered on:

30 January 2015

REPRESENTATION

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr J Knackstredt

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3217 of 2013

SZTRY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal dated 4 December 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Nigeria, arrived in Australia in 2000 as the holder of a…

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 169
Decision Date: 30 January 2015

CaseChat Overview and Summary

The applicant, SZTRY, 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 whether the applicant had established a well-founded fear of persecution for a reason specified in s 5(1) of the *Migration Act 1958* (Cth). The matter came before Judge Barnes of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Refugee Tribunal's (now the Administrative Appeals Tribunal) assessment of the applicant's claims was affected by jurisdictional error. Specifically, the Court was required to determine if the Tribunal had failed to consider relevant evidence or had made findings that were not open to it on the evidence presented, thereby vitiating its decision.

Judge Barnes reasoned that the Tribunal had failed to adequately consider the applicant's evidence regarding the specific nature of the persecution feared and the reasons for that fear. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant evidence and provide reasons that are logically probative of the findings made. The Tribunal's failure to engage with the nuances of the applicant's account, particularly concerning the alleged threats and the credibility of the source of those threats, constituted a failure to undertake the assessment required by the *Migration Act*.

The Court found that jurisdictional error had occurred and accordingly quashed the decision of the Refugee Tribunal. The matter was remitted to the Administrative Appeals Tribunal for redetermination according to law.

Orders