SZVHP v Minister for Immigration - [2015] FCCA 3001

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHP & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3001

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.91R

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1
Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng
(2001) 205 CLR 507; [2001] HCA 17
NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

First Applicant:

SZVHP

Second Applicant:

SZVHQ

Third Applicant:

SZVHR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2894 of 2014

Judgment of:

Judge Barnes

Hearing date:

29 October 2015

Delivered at:

Sydney

Delivered on:

29 October 2015

REPRESENTATION

First Applicant:

In person

Counsel for the Respondents:

Mr T. Reilly

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The Application be dismissed.
The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2894 of 2014

SZVHP

First Applicant

SZVHQ

Second Applicant

SZVHR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) dated 23 September 2014 affirming a decision of the delegate of the First Respondent not to grant the Applicants protection visas. The Applicants are wife, husband and child. Except where necessary, for convenience future references to the Applicant are to the First Applicant who was the primary visa Applicant.
The Applicant is a citizen of the People’s Republic of China who first arrived in Australia in 2008. She and her husband applied for protection visas in October 2012. Subsequently, the Third Applicant was born and was joined in the application.
The Applicant attended an interview with the delegate. She provided a supporting statement and other documentation. The delegate refused the application.
The Applicants sought review by the Tribunal. They attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.
In essence, the Applicant claimed that she was a Christian and a member of an unregistered church in China. She claimed that during a visit back to China in 2009 the police had raided a religious gathering held at her family home that she attended. She claimed that she signed a confession of wrongdoing and undertook not…

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: [2015] FCCA 3001
Decision Date: 29 October 2015

CaseChat Overview and Summary

SZVHP (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) 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 affirmed on review by the Administrative Appeals Tribunal. The applicant then sought to challenge the Tribunal's decision in the Federal Court.

The primary legal issue before the Federal 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 risks of persecution they faced. Specifically, the Court was asked to consider whether the Tribunal had properly applied the legal test for establishing membership of a particular social group as defined by Australian refugee law, and whether it had adequately considered all relevant evidence in determining the risk of harm.

Judge Barnes found that the Tribunal had made a jurisdictional error by failing to adequately consider the applicant's evidence regarding the specific characteristics that defined the social group to which they claimed to belong. The Court held that the Tribunal had applied an overly narrow interpretation of the "particular social group" criterion, thereby failing to engage with the applicant's case in a legally sound manner. Consequently, the Tribunal's decision was set aside. The matter was remitted to the Administrative Appeals Tribunal for redetermination according to law.

Orders