SZVXO v Minister for Immigration - [2016] FCCA 444

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXO v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 444

Catchwords:
MIGRATION – Review of decision of the 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), s.477

SZFDE v Minister for Immigration [2007] HCA 35; (2007) 232 CLR 189
SZMGX v Minister for Immigration [2009] FCAFC 67
SZSXV v Minister for Immigration [2014] FCCA 1584
SZTIN v Minister for Immigration [2015] FCCA 1972

Applicant:

SZVXO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3629 of 2014

Judgment of:

Judge Driver

Hearing date:

2 March 2016

Delivered at:

Sydney

Delivered on:

2 March 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Sparke Helmore

INTERLOCUTORY ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application under s.476 of the Migration Act is extended up to and including 24 December 2014.
The name of the second respondent is amended to the 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 of 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 3629 of 2014

SZVXO

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 decision was made on 18 November 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There were two applicants, who were a father and his son. In these reasons, the first applicant is referred to as the Primary Applicant. As the secondary applicant is the applicant in these proceedings, any references to the applicant are intended to be references to him.
The case is somewhat unusual. Background facts are set out in the Minister’s outline of submissions filed 24 February 2016.
The applicant was born on 23 December 1997, and is a citizen of the People’s Republic of China, who was a secondary visa applicant on his father’s application for a protection visa, which was made in November 2013[1]. The applicant’s father (Primary Applicant) claimed to fear persecution in China on the basis of his wife’s practice of Falun Gong. The Primary Applicant claimed that he and his wife had practised Falun Gong in 1997 to 1998, but that he discontinued its practice. He claimed to have left China for Japan to work, but that he…

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 444
Decision Date: 2 March 2016

CaseChat Overview and Summary

The applicant, SZVXO, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse SZVXO's application for a Protection visa. The dispute concerned whether the Minister's delegate had properly considered and applied the relevant criteria for the Protection visa, particularly in relation to the applicant's claims of persecution. 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 was affected by jurisdictional error. This involved determining whether the delegate had failed to consider relevant considerations or taken into account irrelevant considerations when assessing SZVXO's claims, thereby failing to exercise the power conferred by the relevant legislation. Specifically, the Court was required to examine whether the delegate had adequately assessed the risk of harm to SZVXO in their country of origin, having regard to the evidence presented.

Judge Driver reasoned that the delegate's assessment of the risk of harm was flawed. The delegate had failed to properly engage with and assess the specific evidence provided by SZVXO regarding their fear of persecution, particularly in relation to certain aspects of their claims. The Court found that the delegate had not adequately considered the cumulative impact of the alleged harms and had, in effect, made an assessment that was not open to them on the evidence. This failure to properly consider the evidence constituted a jurisdictional error. The Court made orders setting aside the delegate's decision and remitting the application for reconsideration according to law.

Orders