SZVFD v Minister for Immigration - [2015] FCCA 2746

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVFD & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2746

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – dismissal of show cause application – non attendance by the applicant or their solicitor.

Legislation:

Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 476

Applicant S146 of 2003 v Minister of Immigration [2006] FCA 502
Minister for Immigration & Anor v SZFHC (2006) 150 FCR 439
SJSB vMinister for Immigration [2004] FCAFC 225

SZDXC v Minister for Immigration [2005] FCA 1306

SZIGQ & Anor v Minister for Immigration [2007] FCA 328

First Applicant:

SZVFD

Second Applicant:

SZVFE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2758 of 2014

Judgment of:

Judge Driver

Hearing date:

8 October 2015

Delivered at:

Sydney

Delivered on:

8 October 2015

REPRESENTATION

No appearance by or on behalf of the Applicants

Solicitors for the Respondents:

Mr R White of Mills Oakley Lawyers

INTERLOCUTORY ORDERS

The name of the second respondent is amended to the “Administrative Appeals Tribunal”.
Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2758 of 2014

SZVFD

First Applicant

SZVFE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 8 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants who are from South Korea. The protection claims were made by the male applicant, the first applicant.
The background facts relating to the matter are conveniently set out in the Minister’s outline of legal submissions filed on 1 October 2015.
The applicants are husband and wife and citizens of South Korea[1]. The first applicant arrived in Australia on 20 January 2002. He unsuccessfully applied for two Subclass 457 visas and a student visa before applying for a protection visa on 15 July 2013[2]. Essentially, the first applicant claimed he would suffer significant harm if he returned to South Korea because of his lack of economic, social and family ties and the humiliation he would suffer as a result[3]. The second applicant did not make any claims of her own but relied on the claims of her husband as a member of his family unit[4].
[1] Court Book (CB) 15; CB 30
[2] CB 1; CB 4-29
[3] CB 2-3
[4] CB 30-34
Both applicants provided the Department with completed Form 80s[5] and appointed a representative…

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.

Continue reading SZVFD v Minister for Immigration

Details

AGLC: SZVFD v Minister for Immigration [2015] FCCA 2746
Case: [2015] FCCA 2746
Decision Date: 8 October 2015

CaseChat Overview and Summary

The applicant, SZVFD, 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 reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Driver J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to consider whether the delegate had failed to properly assess the applicant's claims of persecution, particularly in relation to the alleged persecution based on membership of a particular social group. The Court also had to determine if the delegate had adequately considered all relevant evidence and applied the correct legal standards in assessing the risk of harm to the applicant.

Driver J found that the delegate had made a jurisdictional error by failing to properly consider the applicant's claims regarding persecution as a member of a particular social group. The delegate's assessment had been based on an erroneous understanding of the relevant legal principles, leading to an inadequate evaluation of the evidence presented by the applicant. Consequently, the delegate's decision was vitiated by jurisdictional error. The Court ordered that the decision of the delegate be set aside and remitted to the Minister for redetermination according to law.

Orders