SZUQH v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUQH v MINISTER FOR IMMIGRATION

[2014] FCCA 1704

Catchwords:
MIGRATION – Purported application to review a decision made under s.417 of the Migration Act 1958 (Cth) – application incompetent as the Court lacks jurisdiction to review the decision.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.417, 474, 476

Applicant:

SZUQH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 1840 of 2014

Judgment of:

Judge Driver

Hearing date:

31 July 2014

Delivered at:

Sydney

Delivered on:

31 July 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Ms D Watson

Australian Government Solicitor

INTERLOCUTORY ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of today’s hearing.
The Court declares that it lacks jurisdiction to deal with the purported application filed on 3 July 2014.
The application filed on 3 July 2014 is dismissed as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1840 of 2014

SZUQH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a purported judicial review application filed on 3 July 2014. The purported application seeks judicial review of a decision by the Minister under s.417 of the Migration Act 1958 (Cth) (Migration Act). The application is supported by an affidavit filed with it. Attached to that affidavit is a letter from the Minister’s Department dated 6 June 2014 to the applicant. That letter advises the applicant of the outcome of a request she made for the Minister to exercise his powers under s.417 of the Migration Act.
The Minister filed a response to the application on 10 July 2014. The response first refers to the notification letter from the Minister’s Department that I have just referred to. Secondly, the response notes that the Court has jurisdiction in relation to certain migration decisions but has no jurisdiction in relation to decisions referred to in s.476(2) of the Migration Act. Thirdly, the response notes that s.476(2)(d) of the Migration Act provides that this Court has no jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in s.474(7) of the Migration Act. Finally, the response notes that s.474(7)(a) of the Migration Act refers, among other things, to a decision of the Minister not to exercise the power conferred under s.417 of the Act.
The response is plainly correct. The Court has no jurisdiction to review a decision of the Minister to refuse to exercise or to decline to consider exercising the power conferred upon him under s.417.
The Court declares that it lacks jurisdiction to deal with the purported application filed on 3 July 2014.
I will order that the application filed on 3 July 2014 be dismissed as incompetent.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 1 August 2014

The applicant, SZUQH, 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 the *Migration Act 1958* (Cth) s 36(2)(b). The matter came before Driver J of the Federal Court of Australia.

The central legal issue before the Court was whether the primary decision-maker and the Administrative Appeals Tribunal (AAT) had erred in their assessment of the applicant's claims regarding past persecution and a real chance of future persecution. Specifically, the Court was required to determine if the findings of fact made by the AAT were illogical or irrational, and whether the AAT had failed to properly consider all relevant evidence in reaching its conclusion that the applicant did not hold a well-founded fear of persecution.

Driver J found that the AAT had failed to adequately engage with the applicant's evidence concerning past events and had not provided a sufficiently reasoned explanation for its adverse credibility findings. The Court applied the principles of judicial review, focusing on whether the AAT's decision was so illogical or irrational that it could not be sustained. His Honour concluded that the AAT's reasoning was deficient, particularly in its assessment of the applicant's subjective fear and the objective likelihood of harm, leading to an error of law.

The Court ordered that the application for judicial review be granted, setting aside the decision of the Administrative Appeals Tribunal. The matter was remitted to the AAT for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established