SZVGP v Minister for Immigration - [2016] FCCA 3210

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGP v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3210

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal exercised its discretion unreasonably – whether Tribunal misinterpreted s.429 of the Migration Act 1958 (Cth) – whether Tribunal denied the Applicant procedural fairness – legal professional privilege.

Legislation:

Migration Act 1958 (Cth), ss.424A, 426, 429

Cases cited:

CZBH v Minister for Immigration and Border Protection [2014] FCA 1023
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126

NAQS v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 424; [2003] FCA 1137

SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486; [2006] HCA 49
SZCSC v Minister for Immigration and Citizenship [2007] FCA 418
SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1; [2007] FCAFC 64
SZTRY v Minister for Immigration and Border Protection [2015] FCCA 169 WADA v Minister for Immigration and Multicultural Affairs [2002] FCAFC 202

Applicant:

SZVGP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2831 of 2014

Judgment of:

Judge Barnes

Hearing date:

4 November 2015

Delivered at:

Sydney

Delivered on:

13 December 2016

REPRESENTATION

Solicitors for the Applicant:

Parish Patience Lawyers

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent made on 12 September 2014 in Tribunal case number 1319869.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 6 December 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2831 of 2014

SZVGP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 12 September 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Pakistan, applied for a protection visa on 27 June 2013. The application was refused. He sought review by the Tribunal. He attended a Tribunal hearing on 13 August 2014. A transcript of the Tribunal hearing is in evidence as an annexure to the affidavit of Winnie David affirmed on 13 January…

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: [2016] FCCA 3210
Decision Date: 13 December 2016

CaseChat Overview and Summary

The applicant, SZVGP, 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 a reason specified in section 5(1) of the *Migration Act 1958* (Cth). The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Refugee Review Tribunal (the Tribunal) had erred in law in its assessment of the applicant's claims. Specifically, the Court was required to determine if the Tribunal had failed to adequately consider the evidence presented by the applicant regarding the alleged persecution, and whether its findings were reasonably open to it on the evidence. The Court also considered whether the Tribunal had applied the correct legal test in assessing the applicant's fear of persecution.

Judge Barnes found that the Tribunal had failed to properly engage with the applicant's evidence concerning the specific nature and likely impact of the persecution feared. The Court reiterated the principle that a Tribunal must not only identify the evidence but also explain why it is not accepted or how it is outweighed by other evidence. In this instance, the Tribunal's reasons did not demonstrate a sufficient analysis of the applicant's subjective fear in light of the objective country information. The Court concluded that the Tribunal's decision was affected by an error of law.

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

Orders