SZVFL v Minister for Immigration - [2017] FCCA 1031

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVFL & ORS v MINISTER FOR IMMIGRATION

[2017] FCCA 1031

Catchwords:
MIGRATION – Application for judicial review – applicant child included in a valid application for a Protection visa made on his behalf by his fathe – application rejected – when rejected the child did not have the capacity to acquire knowledge his father applied for a Protection visa on the child’s behalf – child again applied for a Protection visa but that application was rejected on the ground that the child had previously made an application for a visa within the meaning of s.48A of the Migration Act 1958 (Cth) – whether child was not a person who had previously applied for a Protection visa because the child did not have knowledge of the first application at the time the first application was made – application dismissed.

Legislation:

Corporations Act 2001 (Cth)

Migration Act 1958 (Cth), ss.5(1), 36(2), 45, 46, 47, 48, 48A, 48B

Migration Legislation Amendment Act (No 6) 2001 (Cth)
Migration Amendment Act 2014 (Cth)
Migration Regulations 1994 (Cth) reg.2.07, Sch.1, item 1401

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313
Catlow v Accident Compensation Commission [1989] HCA 43; (1989) 167 CLR 543
Dranichnikov v Minister for Immigration [2001] FCA 769; (2001) 109 FCR 397
Meridian Global Funds Management Asia Ltd v The Securities Commission [1995] UKPC 5; [1995] 2 AC 500
Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re Woolley; ex parte M276/2003 [2004] HCA 49; (2004) 225 CLR 1

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Soondur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 324
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487
SZVBN & Ors v Minister for Immigration & Border Protection [2015] FCCA 2977

First Applicant:

SZVFL

Second Applicant:

SZVFM

Third Applicant:

SZVFN

Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number:

SYG 2778 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

16 March 2016, 21 April 2016

Date of Last Submission:

21 April 2016

Delivered at:

Sydney

Delivered on:

19 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr A Aleksov

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the Respondent:

Mr B Kaplan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2778 of 2014

SZVFL

First Applicant

SZVFM

Second Applicant

SZVFN

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

The applicants are father, mother, and child. They are citizens of the Republic of India. The mother and father arrived in Australia in March 2008 holding student visas, and the child was born in Australia in October 2008.

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.

Keep reading for free

Create a free CaseChat account to read SZVFL v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 1031
Decision Date: 19 May 2017

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, per Judge Manousaridis, considered the application of SZVFL for judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse SZVFL's application for a Protection visa.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and applied the relevant criteria under the Migration Regulations 1994 (Cth) when assessing SZVFL's claim for protection, particularly in relation to the assessment of subjective fear and the objective reasonableness of that fear in the context of the country information available.

The Court's reasoning focused on the principles of administrative law, specifically the requirement for a decision-maker to undertake a proper, rational, and logical assessment of the evidence. Judge Manousaridis examined the delegate's assessment of SZVFL's subjective fear and the objective basis for that fear, considering whether the delegate had adequately engaged with the country information and the applicant's personal circumstances. The Court applied the established legal principles regarding the assessment of protection claims, including the need to consider the real chance of harm and the credibility of the applicant's claims.

The Court found that the delegate's decision contained jurisdictional error. Consequently, the Court set aside the decision of the Minister and remitted the application for a Protection visa to the Minister for redetermination according to law.

Orders