FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVXE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1271 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Refugee Review Tribunal affirms decision of delegate not to grant protection visas to the applicants – application for judicial review – applicants seek to rely on tender of post-Tribunal hearing evidence – not admissible – Tribunal did have regard to country information but not relevant to its decision and therefore no need to mention in Tribunal decision – no procedural unfairness by Tribunal – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 430, 499 Migration Regulations 1994 (Cth) |
| First Applicant: | SZVXE |
| Second Applicant: | SZVXF |
| Third Applicant: | SZVXG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3604 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 4 July 2016 |
| Date of Last Submission: | 18 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2017 |
REPRESENTATION
| The Applicants appeared in person through the First Applicant. |
| Counsel for the Respondents: | Mr J Hutton. |
| Solicitors for the Respondents: | Australian Government Solicitor. |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application and the Amended Application respectively filed in this Court on 23 December 2014 and 13 March 2015 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3604 of 2014
| SZVXE |
First Applicant
| SZVXF |
Second Applicant
| SZVXG |
Third Applicant
And
| MINISTER FOR… |
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Details
- Case
- [2017] FCCA 1271
- Decision Date
CaseChat Overview and Summary
The applicant, SZVXE, sought judicial review of a decision by the Minister for Immigration. The dispute concerned the Refugee and Humanitarian – Complementary Protection Guidelines and the Refugee and Humanitarian – Refugee Law Guidelines, as well as Department of Foreign Affairs and Trade (DFAT) country information assessments, which the applicant argued the Tribunal failed to adequately consider. The matter was heard by Dowdy J.
The central legal issue before the Court was whether the Tribunal had properly considered the relevant guidelines and country information as required by Ministerial Direction 56, made under s.499(1) of the Act. Specifically, the Court had to determine if the Tribunal's silence on certain aspects of country information indicated a failure to engage with it, or if it represented a considered decision that such information was irrelevant.
Dowdy J, referencing the reasoning in *SZTMD v Minister of Immigration and Border Protection* [2015] 150 ALD 34, concluded that the Tribunal was obligated to form its own opinion on the relevance of the guidelines and country information. The Court held that, similar to the approach in *SZTMD*, the Tribunal's decision record, which did not extensively detail its consideration of country information, indicated that the Tribunal had addressed the issue and determined it to be irrelevant to the applicant's protection visa claim. The Tribunal's reasoning was that the applicant's political activities were remote in time, he had not been politically active for many years, and he had not demonstrated he would face harm in the foreseeable future. The Court applied the principle that a matter not mentioned in the Tribunal's reasons is presumed not to have been considered material for the purposes of its decision.
The central legal issue before the Court was whether the Tribunal had properly considered the relevant guidelines and country information as required by Ministerial Direction 56, made under s.499(1) of the Act. Specifically, the Court had to determine if the Tribunal's silence on certain aspects of country information indicated a failure to engage with it, or if it represented a considered decision that such information was irrelevant.
Dowdy J, referencing the reasoning in *SZTMD v Minister of Immigration and Border Protection* [2015] 150 ALD 34, concluded that the Tribunal was obligated to form its own opinion on the relevance of the guidelines and country information. The Court held that, similar to the approach in *SZTMD*, the Tribunal's decision record, which did not extensively detail its consideration of country information, indicated that the Tribunal had addressed the issue and determined it to be irrelevant to the applicant's protection visa claim. The Tribunal's reasoning was that the applicant's political activities were remote in time, he had not been politically active for many years, and he had not demonstrated he would face harm in the foreseeable future. The Court applied the principle that a matter not mentioned in the Tribunal's reasons is presumed not to have been considered material for the purposes of its decision.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Further, pursuant to Clauses 2 and 3 of Ministerial Direction 56 (referred to in [8] of the Decision Record which was extracted at [33(a)] above) made under s.499(1) of the Act, the Tribunal was only obligated to take account of the specified “Refugee and humanitarian – Complementary Protection Guidelines” and “Refugee and humanitarian – Refugee Law Guidelines” and DFAT country information assessments where relevant to the making of the Tribunal’s decision. Clause 3 of Ministerial Direction 56 in relation to country information is as follows:3.Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.(emphasis supplied) These provisions were given detailed consideration by Perram J in SZTMD v Minister of Immigration and Border Protection [2015] 150 ALD 34 (SZTMD). As in this case, in SZTMD the Tribunal in its Decision Record did not go further than including a paragraph similar to [8] of the Tribunal’s Decision Record. It was submitted in SZTMD that this silence in connection with country information indicated that the Tribunal had not turned its mind at all to country information. His Honour rejected the Applicant’s argument in SZTMD and concluded that the Tribunal had addressed itself to the relevance of country information and decided that it was irrelevant. His Honour said at [20]:20.Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume’s submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466–468; 133 ALR 353 at 362–364; 39 ALD 262 at 270–272 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court. His Honour in SZTMD applied the inference discussed at [69] of Yusuf, namely that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material for the purposes of the written statement of its decision on review as required by s.430(1) of the Act. I consider that the Tribunal has approached its consideration of the First Applicant’s Protection visa claim similarly to that of the Tribunal decision which was the subject of consideration in SZTMD. The Tribunal in this case accepted at face value that the Applicant had been a BNP supporter in the 1990s and an executive member in his district in Bangladesh. However, his political activities were clearly remote in time and since his initial departure from Bangladesh in 1998 he had neither experienced difficulty in entering or exiting Bangladesh nor been politically active for many years. The Tribunal came to the view that he had not possessed any political profile in Bangladesh for some 16 years and that he had failed to demonstrate to the satisfaction of the Tribunal that he would come to the adverse interest of any potential agents of harm now or in the reasonably foreseeable future.
Ratio Decidendi
Legal Principle Established
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