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SZURA v Minister for Immigration

SZURA v Minister for Immigration

Case [2015] FCCA 1539 5 June 2015

Statutory Construction

Administrative Law

Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZURA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1539

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error – allegation that there was no evidence to support the Tribunal’s finding or that the finding was irrational – allegation in the alternative that even if the risk of harm occurring to the first applicant for reasons of Christianity was remote, it did not necessarily follow that the first applicant did not hold a well-founded fear of persecution – open to the Tribunal to find there was no well-founded fear of persecution – no jurisdictional error – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)
Constitution, s.75(v)

Migration Act 1958 (Cth), ss.36, 474, 476

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Minister for Immigration & Border Protection v SZSCA (2014) 89 ALJR 47
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Ethnic Affairs v GuoWei Rong (1997) 191 CLR 559
Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165
Shop, Distributive and Allied Employees Association v National Retail Associationand Another(No 2) [2012] FCA 480
SZSMF v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 931

First Applicant:

SZURA

Second Applicant:

SZURB

Third Applicant:

SZURC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1886 of 2014

Judgment of:

Judge Smith

Hearing date:

16 April 2015

Date of Last Submission:

16 April 2015

Delivered at:

Sydney

Delivered on:

5 June 2015

REPRESENTATION

Counsel for the Applicants:

Mr B. Zipser

Solicitors for the Applicants:

A Lim & Partners

Counsel for the Respondents:

Mr M.J. Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1886 of 2014

SZURA

First Applicant

SZURB

Second Applicant

SZURC

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the second respondent (“Tribunal”) dated 6 June 2014. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicants protection visas.
The first applicant is a citizen of Indonesia who arrived in Australia on 10 November 2007 as a student. On 19 April 2013 she lodged an application for a protection visa on the basis that she feared harm in Indonesia for reasons of her ethnicity, namely Chinese, and her religion, Christianity. The second applicant is the first applicant’s husband. The third applicant is the child of the first…

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.

Continue reading SZURA v Minister for Immigration

Details

AGLC: SZURA v Minister for Immigration [2015] FCCA 1539
Case: [2015] FCCA 1539
Decision Date: 5 June 2015

CaseChat Overview and Summary

The applicant, SZURA, sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) to refuse his application for a protection visa. The Minister for Immigration was the respondent.

The primary legal issue before the court was whether the Tribunal's decision was affected by jurisdictional error. This was alleged on the grounds that there was no evidence to support the Tribunal's findings, or that its findings were irrational. In the alternative, the applicant argued that even if the risk of harm due to his Christianity was remote, it did not automatically follow that he did not hold a well-founded fear of persecution.

Justice Smith found that it was open to the Tribunal to conclude that the applicant did not hold a well-founded fear of persecution. The court determined that there was no jurisdictional error in the Tribunal's decision.

The application was dismissed.

Orders