SZTSM v Minister for Immigration - [2015] FCCA 583

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 583

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether there was before the RRT an issue whether on return to her country of origin the applicant would not express antigovernment political opinions and if not whether that would be because it was not in the nature of the applicant to publicly express political opinions – whether the RRT was obliged to give the applicant notice of such issue – whether the RRT gave the applicant notice of that issue – jurisdictional error.

MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether applicant claimed fear of persecution based on her being afraid to express privately antigovernment political opinion – whether RRT considered such claim – whether if such claim was made whether the applicant abandoned the claim – jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.425

Commissioner for Australian Capital Territory Revenue v Alphaone Pty [1994] FCA 1074; (1994) 49 FCR 576
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZHKA v Minister for Immigration [2008] FCAFC 138
SZSRB v Minister for Immigration & Anor [2013] FCCA 1382

SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205

First Applicant:

SZTSM

Second Applicant:

SZTSN

Third Applicant:

SZTSO

Fourth Applicant:

SZTSP

Fifth Applicant:

SZTSQ

Sixth Applicant:

SZTSR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3265 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

15 July 2014

Delivered at:

Sydney

Delivered on:

18 March 2015

REPRESENTATION

Solicitors for the Applicants:

Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The decision of the second respondent made on 10 December 2013 affirming the decision of the delegate of the first respondent made on 21 December 2012 not to grant the applicants protection visas is quashed.
The second respondent determine according to law the application made to it to review the decision of the delegate of the first respondent made on 21 December 2012 not to grant the applicants protection visas.
The first respondent pay the applicants’ costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3265 of 2013

SZTSM

First Applicant

SZTSN

Second Applicant

SZTSO

Third Applicant

SZTSP

Fourth Applicant

SZTSQ

Fifth Applicant

SZTSR

Sixth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Two questions arise in this application for judicial review. The first is whether there was before the second respondent (Tribunal) an issue that was not before the delegate of the first respondent (Minister) which the…

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 SZTSM v Minister for Immigration

Details

AGLC: SZTSM v Minister for Immigration [2015] FCCA 583
Case: [2015] FCCA 583
Decision Date: 18 March 2015

CaseChat Overview and Summary

SZTSM sought judicial review of a decision made by the Refugee Review Tribunal (RRT). The applicant contended that the RRT had committed jurisdictional error by failing to consider a specific issue, namely whether, upon return to her country of origin, she would refrain from expressing anti-government political opinions, and if so, whether this was due to her inherent nature rather than a fear of persecution. The applicant argued that the RRT was obliged to notify her of this potential issue and that it failed to do so.

The court was required to determine whether the RRT had jurisdictionally erred by not giving the applicant notice of the issue concerning her potential to express anti-government political opinions upon return to her country of origin, and whether such an issue was indeed before the RRT. Furthermore, the court had to consider whether the applicant had claimed a fear of persecution based on her apprehension about privately expressing anti-government political opinions, whether the RRT had considered such a claim, and if a claim was made, whether the applicant had subsequently abandoned it.

Justice Manousaridis found that the RRT had not been obliged to give notice of the issue regarding the applicant's propensity to express political opinions, as this was not an issue that arose from the evidence before the Tribunal. The court also determined that the applicant had not made a claim of fear of persecution based on her apprehension about privately expressing anti-government political opinions, and therefore, the RRT was not required to consider such a claim. Consequently, the application for judicial review was dismissed.

Orders