SZVZO v Minister for Immigration - [2016] FCCA 2557

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZO v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2557

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Iran – applicant not believed – whether the Tribunal erred in testing the veracity of the applicant’s religious claims considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 91R

Cases cited:

ABX15 v Minister for Immigration & Anor [2016] FCA 855

AMF15 v Minister for Immigration [2016] FCAFC 68

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S178A & Ors v Minister for Immigration (unreported)
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
SZWAR v Minister for Immigration & Anor [2016] FCCA 2382
Tran v Minister for Immigration [2004] FCAFC 297 at [5]
W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant:

SZVZO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 105 of 2015

Judgment of:

Judge Driver

Hearing date:

4 October 2016

Delivered at:

Sydney

Delivered on:

4 October 2016

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Solicitors for the Respondents:

Mr A Markus of Australian Government Solicitor

ORDERS

The application as amended on 6 June 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 105 of 2015

SZVZO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

On 4 October 2016, I dismissed with costs the further amended application filed in this matter on 6 June 2016. I refused to grant leave to the applicant to file and rely upon a second further amended application raising additional grounds. I also refused an adjournment while the applicant attempts to obtain leave to raise before the High Court constitutional arguments in the further amended application that have previously been rejected. The procedural and substantive issues arising are similar to those I dealt with in SZWAR v Minister for Immigration & Anor[1]. The following are my reasons for the orders made on 4 October 2016 in this matter, to the extent necessary to augment my earlier reasons in SZWAR.
[1] [2016] FCCA 2382
The applicant is a citizen of Iran who arrived by boat on Christmas Island on 12 August 2012[2]. He participated in an entry interview on 15 September 2012[3] and lodged a protection visa application on 13 December 2012[4]. He appointed a migration agent to advise and assist him in connection with that application[5].
[2] Court Book (CB) 16, 101
[3] CB 4-12
[4] CB 13-39
[5] CB 68-71
The applicant provided a written statement of claims in support of his protection visa application:. The applicant claimed to fear harm because he had renounced Islam, converted to Christianity…

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 2557
Decision Date: 4 October 2016

CaseChat Overview and Summary

SZVZO (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 is from Iran, claimed to fear persecution on the basis of his imputed political opinion and membership of a particular social group. The delegate of the Minister had refused the protection visa application, finding that the applicant's claims were not credible and that he would not be at risk of persecution if returned to Iran. The applicant subsequently applied for judicial review of this decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate had properly considered the applicant's claims, assessed the evidence presented, and applied the relevant legal criteria under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Specifically, the Court needed to determine if the delegate had made findings of fact that were not open to be made on the evidence, or if the delegate had failed to adequately assess the risk of persecution based on the applicant's imputed political opinion and membership of a particular social group.

Judge Driver found that the delegate had failed to properly assess the applicant's claims regarding his imputed political opinion. The delegate had focused on the applicant's stated political beliefs rather than the imputed political opinion, which was a crucial distinction in assessing the risk of persecution. The Court held that the delegate's assessment was therefore flawed and did not adequately consider the real chance of harm the applicant might face. Consequently, the delegate's decision was affected by jurisdictional error.

The Court ordered that the decision of the delegate be set aside and remitted to the respondent for reconsideration according to law.

Orders