SZTVS v Minister for Immigration - [2014] FCCA 2733

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVS v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2733

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application to set aside notice of discontinuance – whether the applicant will suffer any injustice if notice of discontinuance is set aside – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.477(2)

Maddison v Qualtime Association Inc [2010] FMCA 25

Applicant:

SZTVS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 260 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

10 October 2014

Delivered at:

Sydney

Delivered on:

25 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondents:

Ms M. Stone of
DLA Piper Australia

ORDERS

The application to set aside the notice of discontinuance filed in Court on 14 August 2014 is dismissed.
The applicant pay the first respondent’s costs in the amount of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 260 of 2014

SZTVS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 14 August 2014 there came before me for hearing an application to extend time under s.477(2) of the Migration Act 1958 (Cth) (Act). The applicant, who was not legally represented, appeared with the assistance of an interpreter.
At the commencement of the hearing, the lawyer representing the first respondent (Minister) informed me the applicant had indicated to her that he wished to discontinue the proceedings. The applicant confirmed to me that was the case. I then made orders granting the applicant leave to discontinue the proceedings. The applicant signed and filed in Court a notice of discontinuance.
On 10 September 2014 the applicant filed an application in a case seeking an order to reopen his case. In substance, however, the application seeks an order that the Court set aside the notice of discontinuance the applicant signed and filed in Court on 14 August 2014.
On 10 October 2014 the application in a case came before me. The lawyer for the Minister submitted that, although the Court has power to set aside the notice of discontinuance, the Court ought not to set aside the notice of discontinuance. The applicant, who appeared with the assistance of an interpreter, made no submissions, but relied on an affidavit he made on 2 September 2014.

Principles

The Court has power to set aside a notice of discontinuance.[1] The source of the power is the Court’s implied power to do all that is necessary and incidental to the exercise of jurisdiction that is expressly conferred on it.[2]
[1] Maddison v Qualtime Association Inc [2010] FMCA 25 at [30] (Wilson FM)
[2] Maddison v Qualtime Association Inc [2010] FMCA 25 at [12] (Wilson FM)
The Court will set aside a notice of discontinuance where its filing was procured by fraud or by some abuse of process, or where its setting aside is necessary to ensure the Court’s process does not cause an…

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 2733
Decision Date: 25 November 2014

CaseChat Overview and Summary

The applicant, SZTVS, 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 the *Migration Act 1958* (Cth) and whether Australia had non-refoulement obligations towards the applicant. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Refugee Review Tribunal (RRT) had erred in law in its assessment of the applicant's claims. Specifically, the Court was required to determine if the RRT had failed to adequately consider all relevant evidence, including the applicant's subjective fear and the objective country information, when assessing the likelihood of persecution. The Court also considered whether the RRT had properly applied the relevant legal tests for establishing a well-founded fear of persecution and for determining Australia's non-refoulement obligations.

The Court found that the RRT had failed to properly engage with the applicant's evidence regarding past experiences and the potential for future harm. It was held that the RRT's reasoning was deficient in its assessment of the subjective element of the applicant's fear, and that it had not adequately considered the cumulative impact of various factors that could lead to persecution. The Court reiterated the principle that a well-founded fear requires both a subjective fear and an objective basis for that fear, and that the RRT must carefully weigh all available evidence to determine if such a fear is reasonably likely. The Court concluded that the RRT's decision was affected by an error of law.

The Court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders