SZUWJ v Minister for Immigration - [2015] FCCA 1508

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUWJ v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1508

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in Iran – political claim disbelieved and religious fear found not to be well-founded – whether the Tribunal erred by expecting the applicant to supress his atheism considered.

Legislation:

Migration Act 1958 (Cth), s.414

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473

Htun v Minister for Immigration (2001) 194 ALR 244

Minister for Immigration v SZSCA [2014] HCA 45
Minister for Immigration v SZSWB [2014] FCAFC 106

NABD of 2002 v Minister for Immigration [2005] HCA 29
SZTFI v Minister for Immigration [2015] FCA 322
WAKZ v Minister for Immigration [2005] FCA 1065

Applicant:

SZUWJ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2173 of 2014

Judgment of:

Judge Driver

Hearing date:

3 June 2015

Delivered at:

Sydney

Delivered on:

26 June 2015

REPRESENTATION

Solicitors for the Applicant:

Mr N Dobbie of Dobbie and Devine Immigration Lawyers

Solicitors for the Respondents:

Mr W Sharpe of Minter Ellison

ORDERS

The application as amended on 26 November 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2173 of 2014

SZUWJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (Tribunal) decision. The decision was made on 8 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Iran and had made claims of political and religious persecution. The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iran. He arrived in Australia with a student (Class TU 573) visa in July 2012, and lodged an application for a protection (Class XA) visa on 4 January 2013[1].
[1] Court Book (CB) 1
The applicant's claims in support of his application were set out in a statutory declaration[2]. The applicant claimed that he had been involved as a participant in anti-government protests and activities. He also described his family background and his growing scepticism about the Islamic regime which culminated in his atheism. In relation to the period that he attended junior high school, the applicant claimed[3]:
... I can clearly remember that I hated the religious lessons and on any occasion I would argue with my religious teachers about anything that would not sound logical or would be contrary to what they were teaching us.
[2] CB 55
[3] CB 58
During his high school years the applicant claimed that he had an argument with his mother, who he says agreed with him but “cried and begged me to follow what she says which was to basically shut up and just study and say…

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 1508
Decision Date: 26 June 2015

CaseChat Overview and Summary

The applicant, SZUWJ, 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 the Minister's assessment of the applicant's claims of persecution in their country of origin. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to consider whether the Minister had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims, thereby vitiating the decision-making process.

Judge Driver's reasoning focused on the principles of administrative law, particularly the requirement for a decision-maker to undertake a proper consideration of the evidence presented. The Court examined the delegate's reasons for decision to ascertain if they adequately addressed the applicant's specific claims of harm and whether the assessment of those claims was reasonable and based on relevant information. The Court applied the established legal principles regarding the assessment of protection claims under the Migration Act 1958 (Cth), emphasizing the need for a comprehensive and fair evaluation of the applicant's fear of persecution.

The Court found that the delegate's reasons for decision did not adequately address certain key aspects of the applicant's claims, leading to a conclusion that the decision was affected by jurisdictional error. Accordingly, the Court set aside the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders