SZUJN v Minister for Immigration - [2016] FCCA 362

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJN v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 362

Catchwords:
MIGRATION – Judicial review – application for review of recommendation made by an independent protection assessor (IPA) that applicant not be recognised as a person to whom Australia has protection obligations – whether IPA’s duty to accord procedural fairness required IPA to confront applicant with previous inconsistent statement on the basis of which the IPA in part relied for making an adverse credibility finding in relation to the applicant – whether IPA failed to consider psychological opinion – IPA failed to accord procedural fairness to applicant.

Legislation:

Evidence Act 1995 (Cth), s.43

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1

Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Applicant:

SZUJN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

JULIE COWDROY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number:

SYG 1402 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

18 March 2015

Date of Last Submission:

19 March 2015

Delivered at:

Sydney

Delivered on:

26 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr P Reynolds

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Mr P M Knowles

Solicitors for the Respondents:

Australian Government Solicitor

DECLARATION

The recommendation of the Independent Protection Assessor made on 24 October 2012 in review case number SER009 was arrived at in breach of the rules of procedural fairness.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1402 of 2014

SZUJN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

JULIE COWDROY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is a national of Iran, seeks declaratory and injunctive relief in relation to a recommendation made by the second respondent (IPA) that the applicant not be recognised as a person to whom Australia has protection obligations. The applicant claims that in arriving at her recommendation, the IPA denied the applicant procedural fairness, and failed to take into account relevant considerations.
There is no issue between the parties that the IPA was under a duty to accord the applicant procedural fairness and that, if I were to find the IPA failed to accord…

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 362
Decision Date: 26 February 2016

CaseChat Overview and Summary

The applicant, SZUJN, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who is a citizen of Vietnam, claimed to have been persecuted in Vietnam due to his political opinions and his membership of a particular social group. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he had not established a well-founded fear of persecution. The matter came before Manousaridis J in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate had properly considered all the evidence before them, whether they had applied the correct legal tests for assessing claims of persecution, and whether their findings of fact were reasonably open to them on the evidence. Specifically, the Court had to determine if the delegate had failed to adequately assess the applicant's claims regarding his political activities and the alleged threats he faced, and if the delegate's adverse credibility findings were supported by the material.

Manousaridis J found that the delegate had made a jurisdictional error by failing to properly assess the applicant's claims concerning his political activities and the threats he alleged he faced. The Court held that the delegate had not adequately considered the evidence relating to the applicant's political involvement and the potential consequences of his return to Vietnam. The reasoning focused on the delegate's obligation to conduct a thorough and balanced assessment of all relevant evidence, including evidence that might support the applicant's claims, even if other evidence was adverse. The Court reiterated the principle that a failure to engage with significant aspects of an applicant's case can constitute a jurisdictional error.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders