SZVXW v Minister for Immigration - [2016] FCCA 450

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXW & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 450

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal ignored evidence – whether the Administrative Appeals Tribunal considered all claims made by the applicants – whether the Administrative Appeals Tribunal complied with Ministerial Direction No. 56 in compliance with section 499 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss. 5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474, 499
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

First Applicant:

SZVXW

Second Applicant:

SZVXX

Third Applicant:

SZVXY

Fourth Applicant:

SZVXY

Fifth Applicant:

SZVYA

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3651 of 2014

Judgment of:

Judge Emmett

Hearing date:

3 March 2016

Date of Last Submission:

3 March 2016

Delivered at:

Sydney

Delivered on:

3 March 2016

REPRESENTATION

The Applicants appeared in person with the assistance of a Urdu interpreter.

Solicitor for the Respondents:

Mr Tom Galvin (Minter Ellison)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3651 of 2014

SZVXW

First Applicant

SZVXX

Second Applicant

SZVXY

Third Applicant

SZVXZ

Fourth Applicant

SZVYA

Fifth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 8 December 2014 and handed down on 9 December 2014 (“the RRT”).
The first applicant claims to be a citizen of Pakistan and a follower of the Shia Islamic faith, who fears harm from the Taliban in Pakistan (“the Applicant”). The second applicant is the wife of the first applicant, who is of the same nationality and religious faith as the first applicants. The third, fourth and fifth applicants are the children of the first and second applicant. The second, third, fourth and fifth applicants were included in the first applicant’s application for a protection visa…

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 450
Decision Date: 3 March 2016

CaseChat Overview and Summary

SZVXW (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was from Afghanistan, claimed to fear persecution on the basis of his membership of the Hazara ethnic group and his alleged involvement with a political organisation that opposed the Taliban. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision, finding that the applicant had not established a real chance of suffering harm amounting to persecution. The applicant then sought review of the AAT's decision in the Federal Court.

The primary legal issue before Emmett J was whether the AAT had erred in law in its assessment of the applicant's claims. Specifically, the court was required to consider whether the AAT had failed to properly consider all the evidence before it, including evidence relating to the general country situation in Afghanistan and the specific circumstances of the applicant. The court also had to determine if the AAT had applied the correct legal test for establishing a well-founded fear of persecution.

Emmett J found that the AAT had made an error of law by failing to adequately consider the evidence relating to the general country situation in Afghanistan, particularly concerning the treatment of the Hazara ethnic group by the Taliban. His Honour noted that the AAT's reasoning did not demonstrate a proper engagement with the evidence that suggested a real chance of harm to members of this group. Consequently, the AAT had not applied the correct legal standard when assessing the applicant's fear of persecution, as it had not adequately taken into account the objective circumstances that could inform the assessment of a well-founded fear.

The court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders