SZVXP v Minister for Immigration - [2016] FCCA 1287

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXP v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1287

Catchwords:
MIGRATION – Application to dismiss application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) (Act) on the ground that the application to extend time is incompetent because of s.486D of the Act – whether in any event it would have been in the interests of the administration of justice to grant an extension of time – application for extension of time dismissed as being incompetent.

Legislation:

Migration Act 1958 (Cth), ss.476, 477(1), 477(2), 477(2)(b), 486D, 486D(1)

Federal Circuit Court Rules2001 (Cth), rr.13.11, 13.03C(1)(c)

Cases cited:

BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471

MZXPI v Minister for Immigration & Anor [2008] FMCA 1296
SZIHB v Minister for Immigration [2006] FMCA 472
SZKUT v Minister for Immigration & Anor [2008] FMCA 241
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant:

SZVXP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3632 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

20 May 2016

Delivered at:

Sydney

Delivered on:

20 May 2016

REPRESENTATION

No appearance on behalf of or by the applicant

Solicitors for the Respondents:

Mr L Leerdam of DLA Piper Australia

ORDERS

The first respondent have leave to rely on the amended response filed on 13 May 2016.
The application is dismissed as being incompetent by virtue of s.486D of the Migration Act 1958 (Cth).
The applicant pay the first respondent’s costs set in the amount of $6,825.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
The first respondent is to arrange to have these orders entered and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3632 of 2014

SZVXP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act. The remedy the applicant seeks relates to a decision of the second respondent (Tribunal) made on 5 February 2014 affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa. The order is required to be made under s.477(2) because the application was filed on 24 December 2014, over nine months after the day on which the applicant was required to file the application.
Today’s hearing was set down when the matter came before…

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 1287
Decision Date: 20 May 2016

CaseChat Overview and Summary

The applicant, SZVXP, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision of the Refugee Review Tribunal (RRT) to refuse SZVXP's application for a protection visa. The dispute centred on whether the RRT had erred in its assessment of SZVXP's claims for protection.

The primary legal issue before the Federal Court was whether the RRT had failed to adequately consider or properly assess the evidence presented by SZVXP regarding the risk of persecution they faced upon return to their country of origin. Specifically, the court was asked to determine if the RRT's findings were affected by an error of law, particularly in relation to the assessment of SZVXP's credibility and the application of the relevant protection provisions under the *Migration Act 1958* (Cth).

Judge Manousaridis found that the RRT had made a jurisdictional error. The RRT's decision-making process, as articulated in its reasons, demonstrated a failure to engage with crucial aspects of SZVXP's evidence, particularly concerning the alleged ill-treatment and the reasons for their fear of returning. The court held that the RRT's reasons did not sufficiently explain how it reached its adverse credibility findings, thereby failing to provide a proper basis for its ultimate conclusion that SZVXP did not hold a well-founded fear of persecution.

The court ordered that the decision of the Refugee Review Tribunal be set aside, and the matter remitted to the Tribunal to be heard and determined according to law.

Orders