SZVVE v MIBP

Case [2015] FCA 837

FEDERAL COURT OF AUSTRALIA

SZVVE v Minister for Immigration and Border Protection [2015] FCA 837

Citation: SZVVE v Minister for Immigration and Border Protection [2015] FCA 837
Appeal from: Application for extension of time and leave to appeal: SZVVE v Minister for Immigration and Border Protection & Anor [2015] FCCA 1286
Parties: SZVVE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number: NSD 686 of 2015
Judge: PERRAM J
Date of judgment: 13 August 2015
Catchwords: MIGRATION – application for extension of time and leave to appeal – whether jurisdictional error attended the decision of the Refugee Review Tribunal – whether Tribunal required to consider subjective fear of significant harm when determining complementary protection claim
Legislation: Migration Act 1958 (Cth) s 36(2)(aa)
Date of hearing: 3 August 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 23
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Mr A Markus of the Australian Government Solicitor
Solicitor for the Second Respondent: The Second Respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 686 of 2015
BETWEEN:

SZVVE
Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

13 AUGUST 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 686 of 2015
BETWEEN:

SZVVE
Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

PERRAM J

DATE:

13 AUGUST 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application to extend the time in which to seek leave to appeal and, if time is extended, for leave to appeal.  The Federal Circuit Court dismissed the applicant’s claims for judicial review of a decision by the Refugee Review Tribunal (‘the Tribunal’) to refuse to grant him a protection visa.  The dismissal by the Federal Circuit Court was summary in nature, following a show cause hearing.  Such an order is interlocutory so that leave is required to appeal to this Court.

  2. At the hearing the applicant appeared for himself but was accompanied by his brother.  At their request I permitted the brother to make additional submissions.  The brother’s submissions to me were passionate and, if I may say with respect, heartfelt.  He conveyed to me that their family (apart from their very elderly mother and one brother) had had to flee Lebanon.  The various siblings – I think there were seven – were in a number of countries including Germany, Australia and Cyprus.  Their mother remained in Beirut with one of their brothers.  The applicant was very damaged by events in Lebanon and was really not mentally fit to be returned there.  The two brothers work…

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Details
AGLC
SZVVE v MIBP [2015] FCA 837
Case
[2015] FCA 837
Decision Date

CaseChat Overview and Summary

The case of SZVVE v MIBP involved the applicant, SZVVE, who sought an extension of time and leave to appeal a decision of the Refugee Review Tribunal (the Tribunal). The primary issue was whether the Tribunal had made a jurisdictional error when determining a complementary protection claim by not considering the applicant's subjective fear of significant harm. The applicant argued that the Tribunal should have assessed the subjective element of their fear of harm, rather than just the objective circumstances.

The court examined whether the Tribunal was required to consider the subjective fear of significant harm when determining a complementary protection claim. The court concluded that the Tribunal was not required to delve into the subjective state of mind of the applicant regarding their fear of harm. Instead, the Tribunal's role was to assess the objective circumstances and the likelihood of the applicant suffering significant harm if returned to their country of origin. The court found that the Tribunal had not erred in its approach, as it had correctly focused on the objective circumstances.

The court held that there was no jurisdictional error in the Tribunal's decision and, consequently, the application for an extension of time and leave to appeal was dismissed. The court also ordered the applicant to pay the first respondent's costs. The court found that the applicant's argument did not warrant an extension of time, as it did not present a novel or significant legal issue that had not already been considered by the Tribunal. The court further noted that the applicant's failure to raise the issue in the Court below did not warrant an extension of time, as the issue had not been previously ventilated. The court dismissed the application with costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is not altogether clear to me that this argument was advanced in the Court below. Regardless, I would not be disposed to extend time to permit this point to be ventilated.Conclusion The application will be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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