SZUNO v Minister for Immigration - [2014] FCCA 3196

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNO v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 3196

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 412, 476, 494B, 494C

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13, Part 44
Migration Regulations 1994 (Cth), reg.2.16, 4.31

Cases cited:
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657

Applicant:

SZUNO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1283 of 2014

Judgment of:

Judge Nicholls

Hearing date:

8 October 2014

Date of Last Submission:

8 October 2014

Delivered at:

Sydney

Delivered on:

8 October 2014

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondents:

Ms A Carr of DLA Piper

ORDERS

The application made on 14 May 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1283 of 2014

SZUNO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 14 May 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 May 2014 which found that it did not have jurisdiction to review the decision of the Minister’s delegate to refuse a Protection (Class XA)visa to the applicant.

Background

In evidence before the Court today is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”) and the affidavit of Adele Juliet Carr, solicitor, made on 12 August 2014 with two annexures (“A” and “B”).
The following background can be ascertained from the evidence before the Court. The applicant is a citizen of India. He arrived in Australia as the holder of a visitor’s visa on 15 June 2013 (CB 14) and he applied for a protection visa on 12 July 2013 (CB 1 to CB 64). In his application for the visa, the applicant indicated at least two things. First, that all communications about his application, from the Minister or his department, should be sent to him personally. Second, he provided one address as his residential…

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 3196
Decision Date: 8 October 2014

CaseChat Overview and Summary

SZUNO (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Iran, alleged that they feared persecution if returned to their country of origin. The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the respondent's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate of the Minister had properly considered all relevant information and applied the correct legal principles in assessing the applicant's claims for protection, particularly in relation to the grounds for refusal under the *Migration Act 1958* (Cth).

Judge Nicholls considered the evidence presented by the applicant and the reasons provided by the respondent for the refusal. The court's reasoning focused on whether the delegate had adequately assessed the applicant's credibility and the objective country information relevant to their claims. The judge applied principles of administrative law, including the requirement for a decision-maker to undertake a proper, rational, and logical assessment of the evidence before them, and to afford procedural fairness. The court found that the delegate had failed to properly consider certain aspects of the applicant's evidence, leading to a jurisdictional error.

Consequently, the court set aside the decision of the respondent and remitted the application for a protection visa to the respondent for redetermination according to law.

Orders