SZUOV v Minister for Immigration - [2017] FCCA 104

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOV v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 104

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal had jurisdiction to review the delegate’s decision – whether applicant had been re-notified of the delegate’s decision – application dismissed.

Legislation:

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

Migration Regulations 1994 (Cth), regs.2.16, 4.31

Cases cited:

Tay v Minister for Immigration and Citizenship [2010] FCAFC 23; (2010) 183 FCR 163

Minister for Immigration and Citizenship v Manaf [2009] FCA 963; (2009) 111 ALD 437
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550
Rana v Minister for Immigration and Border Protection [2014] FCA 1233
Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308
VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570

Applicant:

SZUOV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1732 of 2014

Judgment of:

Judge Nicholls

Hearing date:

25 October 2016

Date of Last Submission:

25 November 2016

Delivered at:

Sydney

Delivered on:

25 January 2017

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 25 June 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4652.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1732 of 2014

SZUOV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 25 June 2014 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which on 11 June 2014 found that it did not have jurisdiction to review the decision of the Minister’s delegate which had refused a protection (Class XA) visa to the applicant.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB”, “RE1”).
b)The affidavit of Clyde Hungerford, Manager, made on 22 October 2014 annexing certain immigration department records.
c)The affidavit of Mikhail Glavac, Lawyer, made on 8 November 2016 annexing further departmental records.
d)The affidavit of the applicant made on 25 June 2014.
The Minister filed written submissions in this matter on 8 November 2016 and the applicant sent a “letter” to the Court’s Registry which was received on 25 November 2016 (and presumably incorrectly dated). This correspondence has been treated as submissions, but in any event, the “letter” does no more than repeat what the applicant stated before the Court.

Background

The applicant is a Chinese national who arrived in Australia on 21 April 2013 on a tourist visa valid…

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.

Keep reading for free

Create a free CaseChat account to read SZUOV v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 104
Decision Date: 25 January 2017

CaseChat Overview and Summary

The applicant, SZUOV, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Refugee Review Tribunal (the predecessor to the Administrative Appeals Tribunal in this context) had erred in its assessment of the applicant's claims. Specifically, the Court was required to determine if the Tribunal had failed to properly consider all relevant evidence and to apply the correct legal principles in assessing the applicant's fear of persecution based on their alleged membership of a particular social group.

Judge Nicholls found that the Tribunal had failed to adequately consider the evidence relating to the applicant's alleged membership of a particular social group and the potential for persecution on that basis. The Court applied the principles established in cases concerning the assessment of protection claims, emphasizing the need for a thorough and objective evaluation of the evidence, including any evidence of past persecution and the likelihood of future persecution. The Tribunal's decision was found to be affected by an error of law due to this failure to properly consider the evidence.

The Court set aside the decision of the Refugee Review Tribunal and remitted the matter to the Tribunal for redetermination according to law.

Orders