SZUON v Minister for Immigration - [2016] FCCA 2462

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUON v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2462

Catchwords:

MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal failed to accord procedural fairness – whether Tribunal asked itself the correct question – whether Tribunal failed to take into account relevant considerations – whether Tribunal’s finding was illogical – merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 476

Migration Regulations 1994 (Cth), reg.1.12

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Applicant:

SZUON

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1723 of 2014

Judgment of:

Judge Nicholls

Hearing date:

10 May 2016

Date of Last Submission:

10 May 2016

Delivered at:

Sydney

Delivered on:

23 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Solicitors for the Respondents:

Ms L Buchanan of Australian Government Solicitor

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 24 June 2014 and ultimately amended on 27 April 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1723 of 2014

SZUON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 June 2014 and ultimately further amended on 27 April 2016 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), of 19 May 2014, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
In evidence before the Court is the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).

Background

The applicant is a citizen of Iran who arrived in Australia as an “unauthorised maritime arrival” on 5 July 2012. The…

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 2462
Decision Date: 23 September 2016

CaseChat Overview and Summary

This matter concerned an application for review of a decision made by the Refugee Review Tribunal. The applicant, SZUON, argued that the Tribunal had failed to accord procedural fairness, asked itself the incorrect question, failed to consider relevant material, and made an illogical finding. The application was brought before Judge Nicholls.

The central legal issues before the court were whether the Tribunal had breached its duty to provide procedural fairness to the applicant, and whether its decision-making process involved jurisdictional error. Specifically, the court had to consider if the Tribunal had adequately invited the applicant to provide further submissions and evidence, particularly concerning the claims of his relatives who had also sought protection in Australia, and whether the Tribunal had properly considered the material that was eventually provided.

Judge Nicholls reasoned that the Tribunal had taken steps to ensure procedural fairness. The Tribunal had explicitly invited the applicant to provide statements of claims, Department decisions, and any other relevant material from his relatives, stating that it would allow a further fourteen days for submissions. While the applicant's representative initially sought clarification and then provided some material, the Tribunal clarified that it would not undertake further inquiries and would base its decision on the material before it. The court found that the Tribunal's subsequent communication, indicating that it had received the brother-in-law's statement of claims but lacked information on the basis of his protection grant, did not demonstrate a failure to consider relevant material or an illogical finding. The court concluded that there was no jurisdictional error.

The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Importantly, and of direct relevance to the applicant’s argument now, on 19 April 2013 a Tribunal officer wrote to the applicant’s representative confirming that the Tribunal was still awaiting the translated version of the Court document. The Tribunal officer also wrote (at CB 180):“In your statement of claims, you stated that you travelled to Australia with your sister … UDU014), brother-in-law (… UDU121) and your nephew, … UDU019). The Tribunal understands that each of these people has sought protection in Australia. You may wish to consider – if you are in contact with your relatives and they are willing to assist you with any relevant material – whether you wish the Tribunal to also take into account their statements of claims, any Department decision, etc.This is not a request or invitation. The Tribunal will allow another fourteen days for any submissions, and will not proceed to a decision before 3 May 2013.”[Emphasis in the original.] The applicant’s representative responded (at CB 181):“We refer to your message dated 19th April 2013. Would you please forward the attached accredited translation to the Member …We have also requested advice from our Client on the matters raised in your message and will forward a response to you as soon as possible.”[Emphasis added.] The applicant’s representative further wrote to the Tribunal on 26 April 2013 (at CB 184):“We refer again to your fax dated 19th April 2013 and attach a copy of the email dated 29th March2013 and a copy of the attached court document. The original email had been deleted by our Client’s brother. He asked the sender to resend it.Also, would you please advise the Member that [the applicant’s sister], [the applicant’s brother-in-law] and [the applicant’s nephew] are willing to assist [the applicant] with any relevant material. Accordingly, [the applicant] wishes the Tribunal to also take into account their statements of claims etc. when assessing his claims.” On 30 April 2013 the Tribunal officer wrote to the applicant’s representative in the following terms (CB 189):“To avoid any misunderstanding, the Member wishes to confirm that it will be up to [the applicant] to provide any further submissions by 3 May 2013, including any material relating to his relatives’ protection claims. The Tribunal will not be undertaking further enquiries in this regard. The Member will have regard to all the material before him when finalising the matter.”[Emphasis added.] As stated above, on 3 May 2013 the applicant’s representative sent a copy of the brother-in-law’s claims to protection to the Tribunal with the submission that “the Statement is consistent with and supports our Client’s claims” (at CB 190 and see the statement at CB 191 to CB 193). Further, on 22 May 2013 the applicant’s representative advised the Tribunal that the brother-in-law had “been found to be a Refugee by the DIAC delegate” (CB 194). The Tribunal officer responded on 23 May 2013. Relevantly, she stated (CB 196):“Thank you for the written advice that [the applicant’s] brother-in-law has been found to be a refugee. The Tribunal received a copy of his original statement of claims.The Member advises that the material before him indicates that [the applicant’s] brother-in-law originally presented similar claims to those of [the applicant], but it does not indicate the basis on which he was ultimately given protection (for instance, whethere there were any subsequent claims or on what reasoning he obtained protection). If [the applicant] wishes the Tribunal to consider any further materials, he should submit them promptly.”[Emphasis added.] [Errors in the original.]

Ratio Decidendi

Legal Principle Established

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