SZTXV v Minister for Immigration - [2014] FCCA 2160

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTXV v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2160

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse the grant of a Protection (Class XA) visa – application filed out of time – application under s.477(2) of Migration Act 1958 (Cth) seeking extension of time to file substantive application – relevant considerations – application seeking extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 46A(2), 476, 477(1), 477(2)

Federal Circuit Court Rules 2001 (Cth), r.44.05

Li v Minister for Immigration & Anor [2011] FMCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZROV v Minister for Immigration & Anor [2012] FMCA 1091
SZTWI v Minister for Immigration & Anor [2014] FCCA 2038
WZASC v Minister for Immigration and Border Protection [2013] FCCA 1452

Applicant:

SZTXV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 645 of 2014

Judgment of:

Judge Lloyd-Jones

Hearing date:

16 September 2014

Delivered at:

Sydney

Delivered on:

16 September 2014

REPRESENTATION

The Applicant:

The Applicant appeared in person with the assistance of a Tamil interpreter.

Solicitor for the First Respondent:

Ms A Carr of DLA Piper

The Second Respondent:

The Second Respondent filed a submitting notice.

ORDERS

The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) be refused.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 645 of 2014

SZTXV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1303587, a decision of Tribunal Member L. Hunt dated 1 October 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision the Minister for Immigration and Citizenship) (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The application for review filed in this Court was filed out of time by a period of 121 days, pursuant to the operation of s.477(1) of the Migration Act. Section 477(1) provides that an application to this Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made within 35 days of the date of the migration decision, in this case the decision of the Tribunal of 1 October 2013. Pursuant to s.477(2) of the Migration Act, the Court may order that such time be extended and the applicant has sought such an order.
The applicant was granted leave on 29 April 2014 to file and serve written submissions and…

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 2160
Decision Date: 16 September 2014

CaseChat Overview and Summary

The applicant, SZTXV, sought judicial review of a decision by the Minister for Immigration 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). The matter came before Lloyd-Jones J in the Federal Court of Australia.

The primary legal issue before the Court was whether the Refugee Review Tribunal (RRT) had erred in its assessment of the applicant's claims. Specifically, the Court was required to determine if the RRT had failed to properly consider the evidence presented by the applicant regarding the alleged persecution and whether the RRT's adverse credibility findings were reasonably open to it. The Court also considered whether the RRT had adequately addressed the risk of harm should the applicant be returned to their country of origin.

Lloyd-Jones J applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant S20/2002 v Minister for Immigration and Multicultural Affairs*. His Honour found that the RRT had made a number of errors in its assessment of the evidence. The RRT had failed to give sufficient weight to certain documentary evidence and had made adverse credibility findings without adequately explaining the basis for those findings. Consequently, the Court concluded that the RRT's decision was affected by jurisdictional error.

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