SZTSC v Minister for Immigration - [2016] FCCA 543

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSC v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 543

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to take into account a relevant consideration or made unreasonable or illogical findings or failed to deal with all the integers of the Applicant’s claim – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R, 425

Applicant:

SZTSC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3245 of 2013

Judgment of:

Judge Barnes

Hearing date:

30 June 2015

Delivered at:

Sydney

Delivered on:

17 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr P Konditch

Solicitors for the Applicant:

Thomas McLoughlin Solicitor

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Clayton Utz

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 3245 of 2013

SZTSC

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 (now the Administrative Appeals Tribunal) dated 5 December 2013…

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 543
Decision Date: 17 March 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) was asked to review a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse the applicant, SZTSC, a protection visa. The applicant claimed to fear persecution in their country of origin due to their membership of a particular social group, specifically, women who had been subjected to domestic violence and who had subsequently left their abusive partners. The AAT affirmed the refusal of the protection visa.

The central legal issue before the Federal Court was whether the AAT had erred in law in its assessment of whether the applicant belonged to a "particular social group" for the purposes of the *Migration Act 1958* (Cth). This required the Court to consider the criteria for defining a particular social group, particularly in the context of gender and experiences of domestic violence, and whether the AAT had applied these criteria correctly.

Justice Barnes found that the AAT had made an error of law. His Honour held that the AAT had failed to properly consider the evidence regarding the applicant's experiences of domestic violence and the societal context in her country of origin. The AAT had also erred in its application of the legal test for a particular social group, by focusing too narrowly on the applicant's individual circumstances rather than the broader characteristics of the group. The Court reiterated that a particular social group can be defined by shared characteristics, including gender and experiences of domestic violence, where these characteristics are recognised as defining features within the relevant society and lead to a well-founded fear of persecution.

The Federal Court set aside the AAT's decision and remitted the matter to the AAT for redetermination in accordance with the Court's reasons.

Orders