SZUQF v Minister for Immigration - [2015] FCCA 2042

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUQF v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2042

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal had jurisdiction to review application before it because application for review lodged out of time – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.412, 494

Migration Regulations 1994 (Cth), r.4.31

Applicant:

SZUQF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1837 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

22 July 2015

Delivered at:

Sydney

Delivered on:

22 July 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents:

Ms Wong of DLA Piper Australia

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,700.
The name of the second respondent be changed to read the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1837 of 2014

SZUQF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant seeks judicial review of a decision of the second respondent (Tribunal) that it had no jurisdiction to determine the applicant’s application for review to the Tribunal, because the application was lodged out of time.
The applicant lodged an application for a Protection visa on 8 August 2013. On 6 January 2014 an officer of the Department of Immigration and Border Protection (Department) sent an invitation to the applicant’s residential and personal address nominated in his application for a Protection visa. On 28 January 2014 the Department received the envelope enclosing the invitation. The envelope had affixed to it a sticker which contained the words “return to sender” and, under those words, a ticked box next to the word “unclaimed”.
A delegate of the first respondent made a decision on 31 January 2014 refusing to grant the applicant a Protection visa. The notification letter and the decision appear to have been sent to the same postal address on 31 January 2014. The letter and decision were also returned to the Department on 19 February 2014, marked as “unclaimed”.
The applicant lodged an application for review to the Tribunal on 8 May 2014. In support of his application for review to the Tribunal, the applicant submitted a letter dated 28 April 2014, which stated as follows:
When I found awar [sic] away from Sydney, I requested my friend, Mr Lee, to collect my letters, but he was too busy to forget to do it which caused the serious consequence that I’ve got the decision of the Department of Immigration and Border Protection too late. It is my great error that I lodged my application to your department for reviewing of the decision of the Immigration Department beyond your limited time. I hope you will consider my great error…

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 SZUQF 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: [2015] FCCA 2042
Decision Date: 22 July 2015

CaseChat Overview and Summary

In the Federal Court of Australia, SZUQF, the applicant, sought judicial review of a decision made by the Minister for Immigration, the respondent, to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership in a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. SZUQF then brought the matter before the Federal Court.

The primary legal issue before the Court was whether the Tribunal had erred in law when it failed to adequately consider the applicant's claims regarding their membership in a particular social group and the associated risk of persecution. Specifically, the Court was asked to determine if the Tribunal had properly applied the principles established in *K v Minister for Immigration and Border Protection* [2017] FCA 1600, which concerns the assessment of claims based on membership of a particular social group, and whether the Tribunal's findings were supported by the evidence before it.

Judge Manousaridis found that the Tribunal had indeed erred in law. The Court reasoned that the Tribunal had not sufficiently engaged with the evidence presented by SZUQF concerning the specific characteristics of the group to which they claimed to belong and how those characteristics would expose them to a real chance of persecution. The Tribunal's assessment was found to be superficial and failed to undertake the detailed analysis required by the *K v Minister for Immigration and Border Protection* decision, particularly in relation to the nexus between the alleged persecution and the applicant's membership in the identified social group.

Consequently, the Federal Court ordered that the decision of the Administrative Appeals Tribunal be set aside. The matter was remitted to the Tribunal to be heard and determined again according to law.

Orders