SZVRO v Minister for Immigration - [2016] FCCA 1516

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRO v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1516

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – Tribunal finding it lacked jurisdiction because the review application had been filed late – whether the applicant had been notified of the Minister’s delegate’s decision in accordance with the statutory scheme in the Migration Act 1958 (Cth) considered – applicant notifying his address for service as the Villawood Detention Centre – applicant later granted a bridging visa – Department using the address shown on that visa – correspondence actually received – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.48A, 66, 412, 476, 494B, 494C

Migration Regulations 1994 (Cth)

Cases cited:

Maroun v Minister for Immigration & Anor [2009] FMCA 535

Maroun v Minister for Immigration [2009] FCA 1284

Pioneer Glass Pty Ltd v Minister for Immigration [2016] FCCA 1

Singh v Minister for Immigration (2015) 231 FCR 573
Srey v Minister for Immigration (2003) 143 FCR 308

Applicant:

SZVRO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3229 of 2014

Judgment of:

Judge Driver

Hearing dates:

21 June, 25 August 2016

Delivered at:

Sydney

Delivered on:

16 September 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms R Graycar

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application filed on 20 November 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3229 of 2014

SZVRO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The issue in this case is whether the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) was correct in its decision made on 31 October 2014 that it had no jurisdiction because the applicant’s review application was filed out of time. As will be shown, the question is not a simple one to answer but, on the state of the evidence, and by reference to the authorities, and a healthy dose of common sense, I am persuaded that the Tribunal was correct.
The following statement of background facts is derived from the Minister’s outline of legal submissions filed on 14 June 2016.
On 18 December 2012, the applicant lodged an application for a protection (Class XA) visa[1]. Two application forms are in evidence. On “Form 866C – Application for an applicant who wishes to submit their own claims for protection”, the applicant stated that his “current residential address in Australia” was “VIDC: 15 Birmingham Avenue, Villawood, NSW 2163”[2] and that his “current postal address in Australia” was “same as residential”[3]. On “Form 866B – Application for a Protection (Class XA) visa”, in answer to the question “All written communications about this application should be sent to”, the applicant ticked the box labelled “Myself”[4].
[1] Court Book (CB) 1-15; 16-27
[2] CB 2, question 16
[3] CB 2, question 17
[4] CB 24, question 20
On 18 December 2012, the Minister’s Department wrote…

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 1516
Decision Date: 16 September 2016

CaseChat Overview and Summary

The applicant, SZVRO, 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 assessment of the applicant's claims for protection, specifically whether the applicant would face a real chance of suffering harm amounting to persecution if returned to their country of origin. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by an error of law. This involved determining whether the delegate had properly considered all relevant aspects of the applicant's claims, including the subjective fear of persecution and the objective likelihood of harm, in accordance with the *Migration Act 1958* (Cth) and relevant case law. Specifically, the Court had to assess if the delegate had applied the correct legal test when evaluating the risk of harm and whether the delegate's findings were supported by the evidence.

Judge Driver found that the delegate had made an error of law by failing to adequately consider the cumulative effect of the various harms alleged by the applicant. The delegate had assessed each alleged harm in isolation, rather than considering how they might combine to create a situation of persecution. The Court reiterated the principle that a delegate must assess the overall risk of harm, taking into account all relevant factors, and that a failure to do so constitutes an error of law. The Court therefore set aside the delegate's decision.

Orders