SZWBR v Minister for Immigration - [2016] FCCA 2621

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2621

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account Ministerial Direction – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 499

Immigrants and Emigrants Act (“the I & E Act”) (SL), s.41(1)(b)

Cases cited:

SZUQZ v The Minister for Immigration & Anor [2015] FCCA 1152

Applicant:

SZWBR

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 295 of 2015

Judgment of:

Judge Street

Hearing date:

11 October 2016

Date of Last Submission:

11 October 2016

Delivered at:

Sydney

Delivered on:

11 October 2016

REPRESENTATION

Counsel for the Applicant:

Mr B Mostafa of Counsel

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Ms R Francois of Counsel

Solicitors for the Respondents:

Minter Ellison Lawyers

ORDERS

Leave is granted for the Applicant to rely upon the amended application filed 24 February 2016.
The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 295 of 2015

SZWBR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 January 2015, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant lived at a particular place where he was born until his departure from Sri Lanka on 31 May 2012. The applicant departed illegally by boat, and on 20 June 2012 the applicant was transferred to Christmas Island.
The applicant claimed to fear harm in Sri Lanka by reason of his political activities on behalf of the Tamil National Alliance (“TNA”), his maternal uncle's political activities, his Tamil race, and also on the basis of his illegal departure from Sri Lanka and his status as a failed asylum seeker.

The Delegate’s Decision

On 1 July 2013, the delegate found that the applicant's fear of persecution as defined under the Refugees Convention was not well‑founded, and the delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The delegate found that the applicant did not meet the criteria under s.36(2) of Act.

The…

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.

Continue reading SZWBR v Minister for Immigration

Details

AGLC: SZWBR v Minister for Immigration [2016] FCCA 2621
Case: [2016] FCCA 2621
Decision Date: 11 October 2016

CaseChat Overview and Summary

SZWBR (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, a citizen of Iran, claimed to fear persecution upon return to Iran due to his alleged involvement with a political organisation. The matter came before Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to properly consider the applicant's claims of past persecution and fear of future persecution, and whether the delegate had failed to adequately assess the credibility of the applicant's evidence.

Judge Street found that the delegate had failed to adequately assess the applicant's claims. The delegate's assessment of the applicant's credibility was found to be superficial and did not engage with the specific details provided by the applicant regarding his alleged political activities and the reasons for his fear of persecution. The Court reiterated the principle that a decision-maker must genuinely consider all relevant evidence and provide reasons that are sufficiently detailed to demonstrate that consideration. The delegate's reasons did not demonstrate a proper consideration of the applicant's subjective fear and the objective basis for that fear.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders