SZWAB v Minister for Immigration - [2018] FCCA 2316

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAB v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2316

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all material evidence.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Abebe v Commonwealth (1999) 197 CLR 510
Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural Affairs [2005] FCA 1389

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

Applicant:

SZWAB

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 146 of 2015

Judgment of:

Judge Cameron

Hearing date:

23 May 2018

Date of Last Submission:

23 May 2018

Delivered at:

Sydney

Delivered on:

23 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr R. Chia

Solicitors for the Applicant:

Siva Logan Solicitors

Solicitors for the Respondents:

Mr L. Leerdam of DLA Piper

ORDERS

In the event that a transcript of the proceeding be prepared, the name of the applicant’s wife be redacted and replaced with the letter “X”.
A writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 17 December 2014.
A writ of mandamus issue directing the Administrative Appeals Tribunal, as successor of the Refugee Review Tribunal, to determine according to law the applicant’s application made to the Refugee Review Tribunal on 7 August 2013.
The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.
The first respondent pay the applicant’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 146 of 2015

SZWAB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Sri Lanka who arrived at Christmas Island as an irregular maritime arrival on 7 July 2012. On 21 November 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity and his imputed political opinion. On 2 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent,…

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: [2018] FCCA 2316
Decision Date: 23 May 2018

CaseChat Overview and Summary

The applicant, SZWAB, sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) to affirm the refusal of his application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute concerned whether the Tribunal had failed to consider all material evidence before it, thereby committing a jurisdictional error.

The primary legal issue before the Court was whether the Tribunal had adequately considered all the evidence presented by the applicant, particularly in relation to his claims of persecution. This involved determining if the Tribunal's findings were affected by a failure to take into account relevant material, which would constitute a jurisdictional error.

Judge Cameron found that the Tribunal had indeed failed to consider a significant portion of the evidence provided by the applicant. The Tribunal's decision was based on an incomplete appreciation of the material before it, leading to a conclusion that was not supported by a proper consideration of all relevant facts. This failure to consider all material evidence amounted to a jurisdictional error.

Consequently, the Court quashed the decision of the Refugee Review Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.

Orders