SZWAR v Minister for Immigration - [2016] FCCA 2382

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2382

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a Christian convert in Iran – applicant not believed – whether the Tribunal’s testing of the applicant’s faith offended against s.116 of the Constitution considered – no jurisdictional error.

Legislation:

Australian Constitution, s.116
Judiciary Act 1903 (Cth), s.78B

Migration Act 1958 (Cth), ss.91R, 414, 424AA, 425, 474

Cases cited:

ABX15 v Minister for Immigration [2016] FCA 855
AMC15 v Minister for Immigration [2016] FCCA 1458
Attorney-General (Vic) (Ex reel Black) v Commonwealth (1981) 146 CLR 559
Hoxton Park Residents Action Group Inc v Liverpool City Council [2016]

NSWCA 157

Kruger v Commonwealth (1997) 190 CLR 1
Plaintiff S178A/2016 & Ors v Minister for Immigration, unreported
SZUDI v Minister for Immigration [2015] FCA 530

Applicant:

SZWAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 205 of 2015

Judgment of:

Judge Driver

Hearing date:

12 September 2016

Delivered at:

Sydney

Delivered on:

12 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application, as amended by leave on 12 September 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 $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 205 of 2015

SZWAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant is an Iranian man who claims to fear persecution in Iran as a Christian convert and for other reasons. He sought judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 22 December 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
At the conclusion of the hearing of the matter on 12 September 2016, I ordered that the application as amended on that day be dismissed with costs fixed in the sum of $5,500. The following are my reasons for those orders.
The following statement of background facts relating to the applicant’s claims and the decision of the Tribunal on them is derived from the submissions of the parties.
The applicant is a citizen of Iran who arrived on Christmas Island on 5 July 2012[1]. He applied for a protection visa on 25 August 2012[2]. The delegate interviewed the applicant on 2 September 2012[3]. The delegate refused the visa on 18 July 2013[4]. The applicant applied to the Tribunal for review on 23 July 2013[5]. The Tribunal held a hearing on 31 October 2014[6].
[1] Court Book (CB) 154 [35]
[2] CB 28-88
[3] CB 95.9
[4] CB 89-108
[5] CB 110-115
[6] CB 133-134
The applicant…

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 2382
Decision Date: 12 September 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Szwar against a decision of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse his application for a protection visa. The Federal Circuit Court of Australia was tasked with determining whether the delegate's decision was affected by an error of law.

The primary legal issue before the Court was whether the delegate had failed to consider relevant considerations, specifically the applicant's evidence regarding his fear of persecution. The Court was required to assess whether the delegate's assessment of the applicant's credibility and the weight given to his claims were legally sound, particularly in light of the applicant's stated reasons for fearing return to his country of origin.

Judge Driver found that the delegate had failed to adequately consider the applicant's evidence concerning his fear of persecution. The delegate's reasons for decision did not demonstrate a proper engagement with the specific details provided by Mr. Szwar, nor did they adequately explain why that evidence was not accepted or given less weight. This failure to properly consider relevant evidence constituted an error of law. The Court therefore set aside the delegate's decision and remitted the matter to the Minister for reconsideration according to law.

Orders