SZWAY v Minister for Immigration and Border Protection

[2018] FCA 268

FEDERAL COURT OF AUSTRALIA

SZWAY v Minister for Immigration and Border Protection [2018] FCA 268

Appeal from:	SZWAY v Minister for Immigration and Border Protection [2017] FCCA 1814
File number:	NSD 1455 of 2017
Judge:	ALLSOP CJ
Date of judgment:	7 March 2018
Catchwords:	MIGRATION – appeal from Federal Circuit Court – Protection (Class XA) visa – Tribunal overlooked important evidence given to delegate by applicant –jurisdictional error conceded during argument
Date of hearing:	7 March 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Appellant:	Mr L Karp
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

NSD 1455 of 2017

BETWEEN:

SZWAY

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	7 MARCH 2018

THE COURT ORDERS THAT:

1.The hearing be adjourned for the making of orders pursuant to the submission of draft terms by the parties.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

1. This is an appeal from orders made by a judge of the Federal Circuit Court in dismissing a further amended application for judicial review of a decision of the Refugee Review Tribunal dated 24 December 2014.

2. The appeal before me involves an application for an amendment to the notice of appeal to raise matters that were not squarely raised before the learned Circuit Court judge.  The arguments reflected the broad structure of what was argued before the Circuit Court judge, but the amendments couched the matter in a way that was different, and in important respects.

3. Those representing the Minister have, if I may say so, perfectly properly during the course of argument recognised that there was jurisdictional error in how the Refugee Review Tribunal dealt with the matter.  They have identified that as the overlooking of important evidence given to the delegate by the appellant. 

4. The appellant is a Tamil.  One brother was killed in action as a Tamil Tiger in a brigade or part of the Tamil Tiger army known as the Black Tigers.  It was said to be a part of the army prepared to die by suicide if necessary.  Two other brothers were found by the delegate to have been in the Tamil Tigers.  During the course of his claims, in the Tribunal at least, the appellant said he was conscripted by the Tamil Tigers but was let go because of a disability in his hand.

5. The death of the appellant’s brother led to an annual commemorative function by former Tamil Tigers for the Black Tiger families, there being 500 of them.  The appellant made claims before the delegate that he attended these annual functions.  It was unnecessary to explore in detail why he went to them in the post-war era, but one can well imagine the feeling of both necessity and loyalty for that.  There were also claims made before the Tribunal that from time to time Tamil Tiger people came to his family home, his family being one of the 500 Black Tiger families.

6. The Tribunal Member, and I make no personal criticism of the Tribunal member in this, made very strong findings of a lack of credibility in the appellant.  Some of those findings were made, clearly, in the context of a belief as to what had previously been put or not put by the appellant in the application process; in particular, before the delegate.  With the utmost respect to the Tribunal member, it is quite clear that she had overlooked important evidence that had been given to the delegate by the appellant.  I fully appreciate the pressure of work on the Refugee Review Tribunal then, and now in its manifestation as a division of the Administrative Appeals Tribunal, and also upon the Circuit Court in dealing with these matters, but the importance of a sufficient familiarity with what was put to the delegate and the delegate’s reasons so as to appropriately and fairly approach the evidence of an applicant on review is essential.

7. In my view, there was no doubt that the concession made by counsel today is a correct one.  For those reasons, I will make orders in due course allowing the appeal, setting aside the orders of the Circuit Court and in lieu thereof setting aside the decision of the Refugee Review Tribunal and remitting the matter to the Administrative Appeals Tribunal.

8. In accordance with High Court authority, it is not appropriate for me to order that the matter be remitted to another member, but I would only note for those who make these decisions that there were strong findings of credit made in circumstances where it might be thought to be extremely difficult for this person, if still a member of the division, to deal with the matter, but I make no order about that and the comment can simply rest on the transcript.

9. The parties have indicated that they have not yet reached full and complete agreement on such things as costs and have requested that I make orders in chambers tomorrow or Friday once full agreement has been reached.  I am content to do that.

10. Therefore, the only order I will now make is:

    1.The hearing be adjourned for the making of orders pursuant to the submission of draft terms by the parties.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:

Dated:        8 March 2018