SZUBI v Minister for Immigration - [2015] FCCA 226

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUBI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 226

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – whether s.36(3) of the Migration Act 1958 (“Act”) requires only reasonably practicable steps to be taken.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to advise the applicant that the interpretation of s.36(3) of the Act had changed since the primary decision was made.

PRACTICE & PROCEDURE – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

Legislation:

Migration Act 1958, ss.36, 425, 474

Federal Circuit Court Rules 2001, rr.13.03C, 13.10, 16.05

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU (2013) 215 FCR 35
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Minister for Immigration & Border Protection v SZSCA (2014) 314 ALR 514

Applicant:

SZUBI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 698 of 2014

Judgment of:

Judge Cameron

Hearing dates:

17 December 2014, 27 January 2015

Date of Last Submission:

27 January 2015

Delivered at:

Sydney

Delivered on:

5 March 2015

REPRESENTATION

Solicitors for the Applicant:

Mr M. Jones of Parish Patience

Solicitors for the Respondents:

Ms Z. Taylor of Clayton Utz

ORDERS

The applicant’s applications in a case filed on 6 November 2014 and 23 December 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 698 of 2014

SZUBI

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 arrived in Australia on 27 December 2012. On 21 February 2013 he lodged an application for a protection visa alleging that he feared persecution in Nepal because of his political opinion. On 27 August 2013 his 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 on 19 March 2014 sought judicial review of the Tribunal’s decision with this Court.
The applicant’s application was listed for its first court date on 14 April 2014. The applicant appeared in person and in his presence the matter was listed for a call-over on 8 October 2014. The applicant did not appear at the call-over on 8 October 2014 and on the application of the Minister the proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).
These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Rules on 6 November 2014 seeking an order setting aside the orders made by this Court on 8 October 2014 on the basis that they were made in his absence. On 23 December 2014…

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: [2015] FCCA 226
Decision Date: 5 March 2015

CaseChat Overview and Summary

The applicant, SZUBI, sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) to refuse her application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute concerned the interpretation and application of section 36(3) of the *Migration Act 1958* (Cth) and whether the Tribunal's decision was affected by jurisdictional error. The matter came before Judge Cameron of the Federal Circuit Court of Australia.

The primary legal issues before the Court were whether section 36(3) of the *Migration Act* required only reasonably practicable steps to be taken in assessing the applicant's claims, and whether the Tribunal committed jurisdictional error by failing to advise the applicant that the interpretation of section 36(3) had changed since the primary decision was made. Additionally, the Court considered the applicant's application to reinstate proceedings that had been summarily dismissed due to her non-attendance.

Judge Cameron determined that section 36(3) of the *Migration Act* does not impose a requirement to take only "reasonably practicable" steps; rather, it mandates that the Tribunal must take all reasonably practicable steps. The Court found that the Tribunal had not erred in its interpretation or application of this provision. Furthermore, the Court held that there was no obligation on the Tribunal to inform the applicant of any change in the interpretation of section 36(3) after the primary decision had been made, and therefore, no jurisdictional error arose from such a failure. The application to reinstate the proceedings was also dismissed.

Orders