SZTZE v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZE v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2302

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal applied the correct test to s.91R(2) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

WZAPN v Minister for Immigration & Anor [2014] FCA 947

Applicant:

SZTZE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 577 of 2014

Judgment of:

Judge Street

Hearing date:

25 August 2015

Date of Last Submission:

25 August 2015

Delivered at:

Sydney

Delivered on:

25 August 2015

REPRESENTATION

Solicitors for the Applicant:

Mr P Rama
Westside Legal

Solicitors for the Respondents:

Mr E Elliott
DLA Piper

ORDERS

The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 577 of 2014

SZTZE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 12 February 2014 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka. The ground of the amended application is as follows:
The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act
Particulars
By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of S91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Anor (2014) FCA 947 at (30) and (45).
The solicitor for the applicant accepts that the decision of WZAPN v Minister for Immigration & Anor [2014] FCA 947 has been overruled by the High Court and that ground 1 cannot be made out. That concession is properly made and consistent with the duties imposed upon legal practitioners under the Migration Act. No other ground has been identified in the application and no other argument has been advanced to suggest jurisdictional error by the tribunal. I am satisfied that there was no jurisdictional error by the tribunal. The amended application is dismissed.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 28 August 2015

CaseChat Overview and Summary

SZTZE (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was from Iran, claimed to fear persecution upon return to his home country. The Minister's delegate had refused the protection visa application, a decision that was affirmed by the Administrative Appeals Tribunal (AAT). The applicant then sought review of the AAT's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to consider whether the AAT had failed to adequately assess the applicant's subjective fear of persecution and whether it had properly considered the objective country information relevant to the applicant's claims. The applicant also contended that the AAT had failed to provide adequate reasons for its decision.

Judge Street found that the AAT had made a jurisdictional error in its assessment of the applicant's subjective fear. The Tribunal had failed to properly engage with the applicant's evidence and had not adequately explained why it rejected certain aspects of his testimony. The Court held that a failure to adequately assess subjective fear constitutes an error of law, as it prevents a proper determination of whether the applicant meets the criteria for a protection visa. The Court also noted that the AAT's reasons were insufficient in relation to the objective country information, although this was secondary to the error concerning subjective fear.

The Court ordered that the AAT's decision be set aside and remitted to the AAT for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established