SZUSU v Minister for Immigration
[2015] FCCA 2316
•26 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUSU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2316 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Tribunal decision based upon s.36(3) of the Migration Act 1958 (Cth) – Tribunal applying the wrong test for the application of that provision. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| SZUDE v Minister for Immigration [2015] FCCA 60 SZUYA v Minister for Immigration & Anor [2015] FCCA 2315 |
| Applicant: | SZUSU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1960 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | G & S Law Group |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 16 June 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $5,750.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1960 of 2014
| SZUSU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
On 26 August 2015 I made the following orders in this matter:
1.The name of the second respondent is amended to “Administrative Appeals Tribunal”.
2.A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 16 June 2014 into this Court for the purpose of quashing it.
3.A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
4.The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $5,750
The following are my reasons for those orders.
This case raised materially the same issues as in SZUYA v Minister for Immigration & Anor[1]. As in that case, the applicant, who is from Nepal, failed before the former Refugee Review Tribunal (Tribunal) (constituted by the same member as in SZUYA) because of the application of s.36(3) of the Migration Act 1958 (Cth) (Migration Act). The Tribunal made no finding in relation to s.36(2). The applicant reserves his rights in relation to that issue in the light of my decision in SZUDE v Minister for Immigration & Anor[2] which is subject to appeal in the Federal Court.
[1] [2015] FCCA 2315
[2] [2015] FCCA 60
These proceedings began with a show cause application filed on 14 July 2014. The applicant relies upon an amended application filed on 14 August 2015. There are four grounds in the application:
1. The Second Respondent made jurisdictional error by misconstruing the effect and construction of s.36(3) of the Migration Act 1958 (Cth) (‘the Act’) and s.36 generally in relation to third Countries.
1A. Further or in the alternative to paragraph 1, the Second respondent made jurisdictional error at [50] by adopting an erroneous test of section 36(3) of the Migration Act 1958 (Cth).
Particulars
a. At [50] the Second Respondent adopted a test based upon the Applicant having “as a matter of practical reality, the Applicant has a right to enter and reside in India”.
b. Such a test is inconsistent with the requirements of section 36(3) as held by the Full Court of the Federal Court: MIMAC v SZRHU [2013] FCAFC 91 and SZTOX v MIBP [2015] FCAFC 77.
2. The Second Respondent made jurisdictional error by taking into account irrelevant considerations and basing its decision on those irrelevant considerations.
Particulars
a. The Tribunal noted that there were many Nepalese Students who had made Refugee applications in Australia and used that to make a credibility finding against the Applicant. This was an irrelevant consideration to be taken into account by the Tribunal.
b. Such other particulars or grounds as may be revealed once a transcript is obtained.
3. The Second Respondent made jurisdictional error failing to have proper regard to the Applicant’s claims.
Particulars
a. At paragraph 39, the Tribunal misconstrued the Applicant’s claim. The applicant did not fail to explain the delay in his application for a refugee Visa as he did not fear return to Nepal while he had a valid visa and it was not an issue for him during the period of his visa or while there was not risk of him being returned to Nepal.
4. The Second Respondent made jurisdictional error by failing to properly consider s.36(5).
a. The Applicant claimed that there were links between the Maoists in Indian and the Maoists in Nepal and therefore there was a risk of being returned to Nepal. The Tribunal failed to effectively deal with the risk of being returned to Nepal from India.
b. At [46] the Tribunal noted its task was firstly to assess if there was a real chance of harm in India and or a real risk of significant harm, in India. It failed to properly assess the risk of the Applicant being returned to Nepal and at paragraph 76 to 80 the Tribunal paid lip service to the requirements to consider s.36(5) but made no proper assessment with regard to the Applicant.
c. The consideration of s.36(5) was of greater importance in circumstances where the Tribunal refuses or found it was not required to consider the Applicant’s claims in respect of Nepal see [39] and [80].
Only Ground 1A was pressed.
The representation in this case was the same as in SZUYA. With the agreement of the representatives, this case was heard by me immediately following SZUYA. It was understood that the outcome should be the same in both cases as the decision of the Tribunal in each case is materially the same.
For the same reasons as I advanced in SZUYA at [11]-[18] I am satisfied that the Tribunal committed jurisdictional error by applying the wrong test to the application of s.36(3) of the Migration Act at [50] of its reasons where the Tribunal said[3]:
[3] CB 101
Taking into account the terms of the Treaty itself, the information from Indian and Australian authorities about the administrative arrangements concerning entry to India by Nepalese nationals and the country information and other commentary on the ability of Nepalese citizens to enter and reside in India, the Tribunal is satisfied that that, as a matter of practical reality, the applicant has a right to enter and reside in India.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 31 August 2015
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