SZVSQ v Minister for Immigration - [2017] FCCA 1286

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVSQ v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1286

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – show cause hearing – factors considered – no arguable case raised by the grounds of the application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

Cases cited:

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Nguyen v Minister for Immigration and Citizenship [2000] FCA 1265; (2000) 101 FCR 20
Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50
SZQRU v Minister for Immigration v Minister for Immigration and Citizenship [2012] FCA 1234
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592

Applicant:

SZVSQ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3290 of 2014

Judgment of:

Judge Nicholls

Hearing date:

3 May 2017

Date of Last Submission:

3 May 2017

Delivered at:

Sydney

Delivered on:

3 May 2017

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Mr Flick of DLA Piper Australia

ORDERS

The application made on 24 November 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3290 of 2014

SZVSQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 November 2014, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 27 October 2014, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court today is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence is the…

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.

Keep reading for free

Create a free CaseChat account to read SZVSQ v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 1286
Decision Date: 3 May 2017

CaseChat Overview and Summary

The applicant, SZVSQ, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa under section 417 of the *Migration Act 1958* (Cth). The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had erred in law in assessing the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider the evidence presented by the applicant, particularly concerning the risk of persecution in their country of origin, and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Judge Nicholls found that the delegate had made an error of law by failing to adequately consider and assess all of the evidence provided by the applicant. The delegate's adverse credibility findings were found to be not reasonably open on the evidence before them, as they had overlooked or undervalued significant portions of the applicant's testimony and supporting documentation. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a comprehensive and balanced assessment of all relevant evidence.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders