SZUUR v Minister for Immigration - [2015] FCCA 2532

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2532

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant’s claiming political persecution in Bangladesh – applicants failing to attend Tribunal hearing – documents provided by the applicants inconsistently recording their address – what was their last address for service considered – whether the applicants received invitation to the Tribunal hearing considered – whether the result procedurally unfair considered.

Legislation:

Migration Act 1958 (Cth), ss.53, 422B, 424A, 425, 425A, 441A, 441C, 441G

Migration Regulations 1994 (Cth)

Minister for Immigration vSZIZO (2009) 238 CLR 627
MZYSZ v Minister for Immigration & Anor [2012] FMCA 390

SAAP & Anor v Minister for Immigration & Anor (2005) 228 CLR 294
Singh v Minister for Immigration (2000) 98 FCR 77
SZFDE v Minister for Immigration (2007) 232 CLR 189
SZKGF v Minister for Immigration [2008] FCAFC 84
SZLBR v Minister for Immigration [2008] FCAFC 85

First Applicant:

SZUUR

Second Applicant:

SZUUS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2059 of 2014

Judgment of:

Judge Driver

Hearing date:

4 August 2015

Date of Last Submission:

25 September 2015

Delivered at:

Sydney

Delivered on:

13 October 2015

REPRESENTATION

Counsel for the Applicant:

Mr B J Symons

Counsel for the Respondents:

Mr D Hughes

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 23 July 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2059 of 2014

SZUUR

First Applicant

SZUUS

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 25 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are from Bangladesh and had claimed protection on the grounds of political opinion. Relevant claims were made by the first applicant. References in this judgment to “the applicant” or “the first applicant” are intended to be references to him. The following statement of background facts is derived from the submissions of the parties.
On 16 July 2013, the first applicant submitted an “Application for a Protection (Class XA) Visa” form to the Minister’s Department[1]. The residential address on this form, and therefore the postal address on this form, was incorrectly entered in that the street name was misspelt with the letter “R” missing[2]. It should be noted that the first applicant signed the application form with the correct address shown elsewhere[3].
[1] Court Book (CB) 1
[2] CB 2, item 16 and item 17
[3] CB 14, item 67 and CB 5, item 36
The second applicant appended to the first applicant's “Application for a Protection (Class XA) Visa” form a form entitled “Application for a member of…

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: [2015] FCCA 2532
Decision Date: 13 October 2015

CaseChat Overview and Summary

The applicant, SZUUR, 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). The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims, specifically concerning the credibility of the applicant's account and the assessment of the risk of harm should the applicant be returned to their country of origin. The Court was required to determine if the delegate's findings were supported by the evidence and whether the delegate had properly applied the relevant legal principles in assessing the risk of persecution.

Judge Driver found that the delegate had failed to adequately consider certain aspects of the applicant's evidence, particularly in relation to the applicant's subjective fear and the objective circumstances in the country of origin. The Court applied the principles established in cases concerning the assessment of protection claims, emphasising the need for a holistic and balanced consideration of all available evidence. The delegate's assessment was found to be flawed due to an insufficient engagement with the applicant's narrative and a failure to properly weigh the potential risks.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders