SZVMQ v Minister for Immigration - [2015] FCCA 3325

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVMQ v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3325

Catchwords:
MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Abebe v Commonwealth of Australia [1999] HCA 14; (1991) 197 CLR 510
Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259

NAHI v Minister for Immigration [2004] FCAFC 10 at [11]
SZQFV and Anor v Minister for Immigration & Anor [2011] FMCA 927
SZRJY v Minister for Immigration & Anor (No.2) [2012] FMCA 756
SZRMS v Minister for Immigration & Anor [2013] FMCA 161
SZSPO v Minister for Immigration & Anor [2013] FCCA 1012

SZSUT v Minister for Immigration & Anor [2014] FCCA 1084

SZTGX & Anor v Minister for Immigration & Anor [2014] FCCA 1847

WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant:

SZVMQ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3166 of 2014

Judgment of:

Judge Driver

Hearing date:

11 December 2015

Delivered at:

Sydney

Delivered on:

11 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents:

Ms A. Wong of DLA Piper

INTERLOCUTORY ORDERS

The name of the second respondent is amended to “Administrative Appeals Tribunal.”
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements 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 3166 of 2014

SZVMQ

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). The Tribunal decision was made on 21 October 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 3 December 2015.
The applicant is a male citizen of Bangladesh, who applied for the visa on 18 November 2013. On 18 March 2014 the applicant provided a personal statement in which he made the following claims:
The applicant claimed to fear harm in Bangladesh at the hands of Islamic fundamentalists because of his membership of the Hindu minority and his involvement in protests over the leniency of sentences handed down on those found guilty of war crimes during the country's 1971 war of liberation. The applicant…

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 3325
Decision Date: 11 December 2015

CaseChat Overview and Summary

The applicant, SZVMQ, 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 the Minister's assessment of whether SZVMQ would be subject to persecution or substantial harm if returned to their country of origin.

The primary legal issue before the Court was whether the Minister's delegate had failed to properly consider and assess the evidence relating to SZVMQ's claims of past persecution and fear of future persecution. Specifically, the Court was asked to determine if the delegate's adverse credibility findings were reasonably open on the evidence, and if the delegate had adequately addressed the risk of harm from non-state actors.

Driver J found that the delegate's assessment of the evidence was flawed. The delegate had made adverse credibility findings without adequately explaining the basis for those findings, particularly in relation to inconsistencies in SZVMQ's account. Furthermore, the delegate had failed to properly engage with the expert evidence presented regarding the risk of harm from specific groups in SZVMQ's country of origin. The Court applied the principles of administrative law, requiring that decision-makers properly consider all relevant evidence and provide adequate reasons for their findings.

The application for judicial review was granted, and the decision of the Minister's delegate was set aside. The matter was remitted to the Minister for redetermination according to law.

Orders