SZUNS v Minister for Immigration - [2015] FCCA 2334

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2334

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.477(1), 477(2)

Federal Circuit Court Rules 2001 (Cth), r.44.05(2)(c)

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZQGO v Minister for Immigration and Citizenship & Anor [2012] FCA 177; (2012) 125 ALD 449
SZTSU v Minister for Immigration & Anor [2014] FCCA 1697

Applicant:

SZUNS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1680 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

12 May 2015

Delivered at:

Sydney

Delivered on:

28 August 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms A Wong of DLA Piper Australia

ORDERS

The application pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.
The applicant pay the first respondent’s costs.
The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1680 of 2014

SZUNS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant applies for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the time prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal).
The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 13 December 2013 and the applicant filed his application for judicial review on 20 June 2014. The applicant, therefore, is some 154 days out of time.

Principles for extending time under s.477(2)[1]

[1] SZTSU v Minister for Immigration & Anor [2014] FCCA 1697

Under s.477(2) of the Act, the Court may order the extension of the 35 day time period if two things are satisfied. First, the application for such order has been made in writing to the Court, specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court is satisfied it is necessary in the interests of the administration of justice to make such order.
In SZMFJ v Minister for Immigration & Anor[2] Nicholls FM (as his Honour then was) identified a non-exhaustive list of matters that may be relevant in considering whether it is necessary in the interests of justice to order an extension of time. These matters are the extent of the delay and the reason for the delay, whether there is any merit in the application, whether there is any prejudice to the respondents if an…

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.

Continue reading SZUNS v Minister for Immigration

Details

AGLC: SZUNS v Minister for Immigration [2015] FCCA 2334
Case: [2015] FCCA 2334
Decision Date: 28 August 2015

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, SZUNS, 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 SZUNS's application for a Protection visa.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider, or adequately consider, certain evidence provided by the applicant. Specifically, the Court was asked to determine if the delegate had overlooked or misapprehended evidence relating to the applicant's claims of persecution, which was crucial to the assessment of their Protection visa application.

Judge Manousaridis found that the delegate had indeed failed to properly consider significant portions of the evidence presented by SZUNS. The Court reasoned that a failure to engage with relevant evidence, particularly when it directly addressed the grounds for seeking protection, constituted an error of law. This failure meant that the decision-making process was flawed, as it did not take into account all material facts necessary for a lawful determination of the application.

Consequently, the Court quashed the delegate's decision and remitted the matter to the Minister for redetermination according to law.

Orders