SZUCF v Minister for Immigration - [2014] FCCA 1863

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUCF v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1863

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 denied the applicant natural justice, failed to consider the applicant’s submissions and evidence and breached s.425 of the Migration Act 1958 by not providing interpreting services at its hearing.

Legislation:

Migration Act 1958, ss.36, 422B, 424A, 425, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

SZUCF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 763 of 2014

Judgment of:

Judge Cameron

Hearing date:

8 July 2014

Date of Last Submission:

8 July 2014

Delivered at:

Sydney

Delivered on:

8 July 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Mr T. Reilly

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 763 of 2014

SZUCF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Papua New Guinea who arrived in Australia on 3 October 2010 as the holder of a student visa. On 2 December 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 Papua New Guinea because of his family’s involvement in a clan land dispute. On 9 January 2014 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 cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Background facts

The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Tribunal in its decision. As summarised by the Tribunal, the applicant relevantly claimed that:
a)his father was the head of his clan. Since 1997 his clan had been involved in an ongoing conflict with other clans over land. The case was being considered by a land court and an appeal process was also available;
b)once while walking he was attacked with a long bush knife and he believed that the attack was connected to the land dispute. He could not remember when…

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 1863
Decision Date: 8 July 2014

CaseChat Overview and Summary

SZUCF (the applicant) sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) to refuse to grant 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 denied the applicant natural justice, failed to consider the applicant's submissions and evidence, and breached section 425 of the *Migration Act 1958* (Cth) by not providing interpreting services at its hearing.

Judge Cameron found that the Tribunal had failed to provide the applicant with adequate notice of the adverse information it intended to rely upon, thereby denying the applicant procedural fairness. Furthermore, the Tribunal had failed to adequately consider the applicant's submissions and evidence, particularly in relation to the alleged persecution. The Court also found that the Tribunal had breached section 425 of the *Migration Act 1958* by failing to provide interpreting services, which was a significant factor in the applicant's inability to effectively participate in the hearing.

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

Orders