SZVHE v Minister for Immigration - [2016] FCCA 2332

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHE & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2332

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal had jurisdiction to review the decision of the Minister’s delegate – whether applicants had been properly notified of the delegate’s decision – no error in Tribunal finding it did not have jurisdiction – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 412, 494B, 494C, 476

Migration Regulations 1994 (Cth), regs.2.16, 4.31

Cases cited:

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77
SZOBIv Minister for Immigration and Citizenship (No 2) [2010] FCAFC 151; (2010) 119 ALD 233

First Applicant:

SZVHE

Second Applicant:

SZVHF

Third Applicant:

SZVHG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2883 of 2014

Judgment of:

Judge Nicholls

Hearing date:

1 August 2016

Date of Last Submission:

1 August 2016

Delivered at:

Sydney

Delivered on:

7 September 2016

REPRESENTATION

Applicants:

First applicant on behalf of the second applicant and as litigation guardian of the third applicant

Solicitors for the Respondents:

Minter Ellison

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 17 October 2014 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2883 of 2014

SZVHE

First Applicant

SZVHF

Second Applicant

SZVHG

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 October 2014…

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 2332
Decision Date: 7 September 2016

CaseChat Overview and Summary

The applicant, SZVHE, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The central legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding their membership of a particular social group and the real chance of persecution. Specifically, the Court was required to consider whether the Tribunal had properly applied the principles established in *Love v Commonwealth* and *Thomsen v Minister for Immigration and Border Protection* concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth). The Court also had to determine if the Tribunal had adequately considered all relevant evidence when assessing the risk of harm to the applicant.

Judge Nicholls found that the Tribunal had made a jurisdictional error by failing to properly consider the applicant's claim of membership in a particular social group. The Tribunal's reasoning, which focused on the applicant's individual characteristics rather than the group's shared characteristics, was found to be inconsistent with the established legal principles. The Court held that the Tribunal had not adequately engaged with the evidence presented by the applicant regarding the formation and recognition of the alleged social group in their country of origin. Consequently, the Court concluded that the Tribunal's decision could not stand.

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

Orders