SZUUL v Minister for Immigration - [2014] FCCA 2918

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUL v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2918

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – application set down for show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) – no arguable case raised for the relief claimed – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B, 425

Federal Circuit Court Rules 2001 (Cth), rr.44.11(b). 44.12(1)(a)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601
Rudhravaram v Minister for Immigration and Border Protection [2014] FCA 960
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117

Applicant:

SZUUL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2051 of 2014

Judgment of:

Judge Lloyd-Jones

Hearing date:

26 November 2014

Delivered at:

Sydney

Delivered on:

12 December 2014

REPRESENTATION

The Applicant:

The Applicant appeared in person.

Solicitor for the First Respondent:

Ms A Carr of DLA Piper

The Second Respondent:

The Second Respondent filed a submitting notice.

ORDERS

The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2051 of 2014

SZUUL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed on 22 July 2014 by the applicant, SZUUL, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member B. Henry on 25 June 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister“), to refuse to grant the applicant a Protection (Class XA) visa.
The applicant, pursuant to s.91X of the Migration Act 1958 (Cth) (the “Migration Act”), has been granted a pseudonym and cannot be identified by name.
The solicitors for the Minister filed on 15 September 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and has been marked as Exhibit “A”.

Background

In setting out the following background material I have quoted directly from the Court Book and written submissions prepared by the Minister’s representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a male citizen of Nepal born in August 1982 (CB 154).…

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: [2014] FCCA 2918
Decision Date: 12 December 2014

CaseChat Overview and Summary

The applicant, SZUUL, sought judicial review of a decision by the Minister for Immigration 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). The matter came before Lloyd-Jones J in the Federal Court of Australia.

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

Lloyd-Jones J reasoned that the RRT had failed to properly engage with the applicant's evidence regarding his fear of persecution. The Court found that the RRT had not given sufficient weight to the applicant's personal circumstances and the specific threats he alleged he faced. The judge reiterated the principle that a well-founded fear requires both a subjective fear and an objective basis for that fear, and that the RRT must consider all available evidence to determine if such a basis exists. The Court concluded that the RRT's decision was affected by an error of law.

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