SZUQE v Minister for Immigration - [2016] FCCA 2052

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUQE v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2052

Catchwords:
MIGRATION – Application for review of decision of Tribunal – whether Tribunal failed to comply with Ministerial Direction – whether Tribunal failed to ask itself the right question – whether Tribunal failed to apply the correct test – whether Tribunal misconstrued s.91R(1)(b) or s.91R(2) of the Migration Act 1958 (Cth) – jurisdictional error found – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R, 476

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant:

SZUQE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1834 of 2014

Judgment of:

Judge Nicholls

Hearing date:

12 May 2016

Date of Last Submission:

12 May 2016

Delivered at:

Sydney

Delivered on:

11 August 2016

REPRESENTATION

Counsel for the Applicant:

Mr B Mostafa

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Ms B Tronson with Mr A Edwards

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ in the nature of certiorari issue quashing the decision of the second respondent made on 17 June 2014.
A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.
The first respondent pay the applicant’s costs set in the amount of $12,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1834 of 2014

SZUQE

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 3 July 2014 and ultimately further amended on 21 December 2015 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 17 June 2014, which affirmed the decision of the Minister’s delegate not to grant a Protection (Class XA) visa to the applicant.
In evidence before the Court is the bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), the affidavit of Mr Farid Varess, solicitor, made on 15 December 2015 and the affidavit of Mr Farid Varess, solicitor, made on 27 April 2016.

Background

The applicant is a citizen of Sri…

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 2052
Decision Date: 11 August 2016

CaseChat Overview and Summary

The applicant, SZUQE, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs 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 section 5(1) of the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Refugee Review Tribunal (the Tribunal) had erred in its assessment of the applicant's claims. Specifically, the court was required to determine if the Tribunal had failed to adequately consider all relevant evidence, including the applicant's subjective fear and the objective country information, when assessing the likelihood of persecution. The court also considered whether the Tribunal had applied the correct legal test in determining whether the fear was "well-founded."

Judge Nicholls found that the Tribunal had failed to properly engage with the applicant's evidence regarding his fear of persecution. The Tribunal's decision was found to be deficient in its analysis of the subjective component of the fear, and it did not adequately explain why it preferred certain objective country information over the applicant's personal account. The court reiterated the principle that a well-founded fear requires both a subjective fear and an objective basis for that fear, and that the Tribunal must give proper weight to the applicant's testimony. The court concluded that the Tribunal had not discharged its duty to provide adequate reasons for its decision.

The court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders