SZUIB v Minister for Immigration - [2015] FCCA 979

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUIB v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 979

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal failed to consider “critical and significant relevant materials” provided by the applicant after the date on which the Tribunal dispatched its reasons for decision – whether the Tribunal failed to accord procedural fairness to the applicant by making its decision before support letters were received – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.430A, 441A, 441C(4)

Minister for Immigration v SZQOY [2012] FCAFC 131
Minister for Immigration v SZRNY [2013] FCAFC 104
SZRNJ v Minister for Immigration [2014] FCCA 782

Applicant:

SZUIB

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1250 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

14 April 2015

Delivered at:

Sydney

Delivered on:

14 April 2015

REPRESENTATION

Applicant in person assisted by an interpreter and represented by her husband.

Solicitors for the Respondent:

Ms D Watson of Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1250 of 2014

SZUIB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

In an amended application for review filed on 14 September 2014 the applicant, who is not legally represented, claims the second respondent (Tribunal), failed to consider an article that had been published in the Sunday Telegraph, and acted contrary to a representation the applicant claims the Tribunal made that it would wait until it received the article from the applicant before it would write its decision.
The ground stated in the amended application for review is narrower than the ground stated in the application as initially filed on 12 May 2014. In that form of the application, the applicant claimed she informed the Tribunal at the hearing that the applicant and her husband had documents and materials relevant to her claims that she wanted to put before the Tribunal, and the Tribunal informed the applicant that she should fax them to the Tribunal, and the Tribunal informed the applicant it would wait for the documents before it would make the decision. In these reasons, I will also consider the ground as initially stated in the application for judicial review that was filed on 12 May 2014.
The determination of the applicant’s claims largely turns on what occurred at the hearing before the Tribunal on 23 April 2014. Before I consider what occurred at that hearing, it would be useful to set out the applicant’s claims for protection and the Tribunal’s reasons for rejecting those claims.
The applicant is a citizen of Tonga. Before the Tribunal the applicant claimed that in around 2002, when she was 16 years of age, her parents had arranged her…

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 979
Decision Date: 14 April 2015

CaseChat Overview and Summary

The applicant, SZUIB, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse SZUIB's application for a Protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had failed to consider relevant evidence when assessing SZUIB's claims for protection. Specifically, the Court was required to determine if the delegate had adequately considered the applicant's evidence regarding past persecution and the risk of future persecution should they be returned to their country of origin.

Judge Manousaridis found that the delegate had failed to properly consider crucial aspects of the applicant's evidence. The delegate's assessment was found to be flawed because it did not engage with the specific details provided by SZUIB concerning the nature and extent of the harm they had suffered and the well-foundedness of their fear of future persecution. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a thorough and evidenced-based assessment of all relevant material presented by an applicant.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders