SZUAL v Minister for Immigration - [2016] FCCA 347

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAL v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 347

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to have regard to all the evidence, made a decision which was illogical or unreasonable, relied on incorrect information and relied on outdated information.

ADMINISTRATIVE LAW – Jurisdictional error arising out of intermediate finding of fact which was illogical.

Legislation:

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
SZWCO v Minister for Immigration & Border Protection [2016] FCA 51

Applicant:

SZUAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 654 of 2014

Judgment of:

Judge Cameron

Hearing date:

16 February 2016

Date of Last Submission:

16 February 2016

Delivered at:

Sydney

Delivered on:

25 February 2016

REPRESENTATION

Solicitors for the Applicant:

Mr N. Dobbie of Dobbie & Devine Immigration

Counsel for the First Respondent:

Mr D.A. Hughes

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

A writ of certiorari issue bringing the second respondent’s decision of 17 February 2014 into this Court to be quashed.
A writ of mandamus issue directing the second respondent to re-determine according to law the applicant’s application made to it on 30 March 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 654 of 2014

SZUAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Nepal who last arrived in Australia on 16 October 2012. On 5 November 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Nepal predominantly because of his religious beliefs. On 6 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional…

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 347
Decision Date: 25 February 2016

CaseChat Overview and Summary

SZUAL (the applicant) sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) to refuse his application for a protection visa. The applicant alleged that the Tribunal's decision was affected by jurisdictional error.

The primary legal issues before the court were whether the Tribunal had failed to have regard to all the evidence before it, made a decision that was illogical or unreasonable, relied on incorrect information, or relied on outdated information. These allegations were framed as potential grounds for jurisdictional error.

Justice Cameron found that the Tribunal's decision was affected by jurisdictional error. The Tribunal had made an intermediate finding of fact that was illogical, which in turn rendered its final decision unreasonable and therefore affected by jurisdictional error. The court did not need to consider the other grounds of alleged error.

The court set aside the Tribunal's decision and remitted the matter to the Tribunal to be heard and determined according to law.

Orders