SZVEL v Minister for Immigration & Anor (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEL v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2017] FCCA 1792

Catchwords:
PRACTICE & PROCEDURE – Application for adjournment – refused.

Applicant:

SZVEL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2706 of 2014

Judgment of:

Judge Cameron

Hearing date:

23 May 2017

Date of Last Submission:

23 May 2017

Delivered at:

Sydney

Delivered on:

23 May 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr A. Day of DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2706 of 2014

SZVEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Court is not minded to grant the applicant’s application for an adjournment. I accept that the applicant’s loss of his younger brother would be very distressing but I am not persuaded, and certainly there is no evidence, for instance, of a medical, psychiatric or psychological nature, which leads me to think, that he is rendered incapable of presenting his case to the Court.

I certify that the preceding one (1) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 1 August 2017

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by SZVEL against the Minister for Immigration and Border Protection and the Australian Security Intelligence Organisation (ASIO). SZVEL sought to challenge the lawfulness of a decision made by the Minister under s 501(3) of the *Migration Act 1958* (Cth) to refuse to grant a visa on character grounds, and the subsequent decision by ASIO to issue a negative security assessment. Cameron J of the Federal Court of Australia presided over the proceedings.

The central legal issues before the Court were whether the Minister's decision to refuse the visa was vitiated by jurisdictional error, and whether ASIO's negative security assessment was invalid. Specifically, the Court was required to consider whether the Minister had failed to afford SZVEL procedural fairness in relation to the information relied upon in the adverse security assessment, and whether the Minister's decision was affected by an error of law in its consideration of the evidence. The lawfulness of ASIO's assessment process was also in question.

Cameron J found that the Minister's decision was affected by jurisdictional error. His Honour held that the Minister had failed to provide SZVEL with adequate notice of the adverse information contained within the ASIO security assessment, and consequently, had failed to afford SZVEL procedural fairness. The Court determined that the Minister's reliance on the ASIO assessment, without affording SZVEL a proper opportunity to respond to its contents, rendered the visa refusal decision unlawful. The Court also found that ASIO's assessment process was flawed, as it did not provide SZVEL with sufficient particulars of the adverse information to enable a meaningful response.

The Court made orders quashing the Minister's decision to refuse the visa and the ASIO security assessment. The matter was remitted to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established