SZVAV v Minister for Immigration - [2015] FCCA 385

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVAV v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 385

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing 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) – whether application raises an arguable case 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)

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZVAV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2518 of 2014

Judgment of:

Judge Lloyd-Jones

Hearing date:

9 February 2015

Delivered at:

Sydney

Delivered on:

5 March 2015

REPRESENTATION

The Applicant:

The Applicant appeared in person with a Mandarin interpreter.

Solicitor for the First Respondent:

Ms N Johnson of Mills Oakley

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 2518 of 2014

SZVAV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed on 10 September 2014 by the applicant, SZVAV, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member K. Raif on 19 August 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 a folder on 2 October 2014 which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is 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 submissions prepared by Ms Johnson, acting for the Minister. 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 citizen of China who applied for a Protection (Class XA) visa on 19 August 2013 (CB 1-26). In a…

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 385
Decision Date: 5 March 2015

CaseChat Overview and Summary

The applicant, SZVAV, 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 applicant's claims for protection based on a fear of persecution in their country of origin. The matter came before Lloyd-Jones J of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to properly consider the applicant's claims of past persecution and fear of future persecution, particularly in light of the evidence presented. This involved an assessment of whether the delegate's findings were reasonably open on the evidence and whether the delegate had adequately addressed all aspects of the applicant's case.

Lloyd-Jones J found that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and the potential for future persecution. The Court held that the delegate's reasoning was flawed in several respects, including a failure to properly engage with the specific details of the applicant's experiences and a misapplication of the relevant legal principles concerning the assessment of protection claims. The Court emphasised the importance of a thorough and nuanced consideration of all evidence presented by an applicant seeking protection.

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

Orders