SZWBR v Minister for Immigration and Border Protection

Case [2018] FCA 644

FEDERAL COURT OF AUSTRALIA

SZWBR v Minister for Immigration and Border Protection [2018] FCA 644

Appeal from: SZWBR v Minister for Immigration [2016] FCCA 2621
File number: NSD 1901 of 2016
Judge: PERRAM J
Date of judgment: 11 May 2018
Catchwords: MIGRATION – appeal from Federal Circuit Court – whether Court erred in dismissing appeal from Refugee Review Tribunal – whether Tribunal dealt with clearly articulated argument – where Appellant claimed real risk of torture, cruel or inhuman or degrading treatment or punishment
Legislation:

Migration Act 1958 (Cth) ss 5AA, 36, 46A

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Opened for signature 10 December 1984. 1465 UNTS 85 (entered into force 26 June 1987)

Convention relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954)

International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. 999 UNTS 171 (entered into force 23 March 1976)
Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

NABE v Minister for Immigration and Ethnic Affairs (No 2) [2004] FCAFC 263; 144 FCR 1

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; 243 FCR 556

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405
Date of hearing: 15 February 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 30
Counsel for the Appellant: Mr B Zipser
Counsel for the Respondents: Ms R Graycar
Solicitor for the Respondents: Minter Ellison Lawyers

ORDERS

NSD 1901 of 2016
BETWEEN:

SZWBR

Appellant
AND:

MINISTER FOR IMMIGRAITON AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

11 MAY 2018

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.Set aside the orders of the Federal Circuit Court made on 11 October 2016 in SZWBR v Minister for Immigration & Anor in file SYG295/2015 and in lieu thereof order that:

1.A writ of certiorari issue to the Second Respondent absolute in the first instance quashing the decision it made on 9 January 2015 in file CLR2012/211601 to affirm the delegate’s decision.

2.A writ of mandamus issue to the Second Respondent absolute in the first instance in the same matter directing it to decide the Applicant’s review application according to law.

3.The First Respondent pay the Applicant’s costs of the proceedings as taxed or agreed.

3.        The First Respondent pay the Appellant’s costs of the appeal as taxed or agreed.

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


REASONS FOR JUDGMENT

PERRAM J:

  1. This is an appeal from the Federal Circuit Court: SZWBR v Minister for Immigration [2016] FCCA 2621. That Court refused the Appellant’s application for judicial review of an earlier decision of the Refugee Review…

Details
AGLC
SZWBR v Minister for Immigration and Border Protection [2018] FCA 644
Case
[2018] FCA 644
Decision Date

CaseChat Overview and Summary

SZWBR, an Iranian national, appealed to the Federal Court against a decision of the Federal Circuit Court, which had dismissed his appeal from a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal had rejected the Appellant's application for a protection visa, concluding that he had not satisfied the requirements of the Migration Act 1958 (Cth) for the grant of a protection visa. The Appellant argued that the Tribunal had failed to consider his clearly articulated argument that he faced a real risk of torture, cruel, or inhuman or degrading treatment or punishment if returned to Iran. The Minister for Immigration and Border Protection cross-appealed against the Federal Circuit Court's decision to remit the matter to the Tribunal.

The legal issues in the case concerned whether the Federal Circuit Court had erred in dismissing the Appellant's appeal and whether the Tribunal had failed to address his argument that he faced a real risk of torture, cruel, or inhuman or degrading treatment or punishment if returned to Iran. The Appellant argued that the Tribunal had erred in concluding that he had not satisfied the requirements of the Migration Act for the grant of a protection visa, and that the Federal Circuit Court had erred in dismissing his appeal from the Tribunal's decision. The Minister argued that the Tribunal had correctly found that the Appellant had not satisfied the requirements of the Migration Act for the grant of a protection visa and that the Federal Circuit Court had correctly dismissed the Appellant's appeal.

The Federal Court found that the Federal Circuit Court had erred in dismissing the Appellant's appeal from the Tribunal's decision. The Court held that the Tribunal had failed to address the Appellant's argument that he faced a real risk of torture, cruel, or inhuman or degrading treatment or punishment if returned to Iran. The Court found that the Tribunal's decision was flawed because it failed to address the Appellant's argument and that the Federal Circuit Court had erred in dismissing the Appellant's appeal. The Court held that the appeal should be allowed, and that the orders of the Federal Circuit Court should be set aside and replaced with orders that a writ of certiorari issue to the Tribunal quashing its decision and a writ of mandamus directing the Tribunal to decide the Appellant's review application according to law. The Court also ordered that the Minister pay the Appellant's costs of the proceedings and the appeal.

The Federal Court allowed the appeal, set aside the orders of the Federal Circuit Court, and ordered that a writ of certiorari issue to the Tribunal quashing its decision and a writ of mandamus directing the Tribunal to decide the Appellant's review application according to law. The Court also ordered that the Minister pay the Appellant's costs of the proceedings and the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. Set aside the orders of the Federal Circuit Court made on 11 October 2016 in SZWBR v Minister for Immigration & Anor in file SYG295/2015 and in lieu thereof order that:

1. A writ of certiorari issue to the Second Respondent absolute in the first instance quashing the decision it made on 9 January 2015 in file CLR2012/211601 to affirm the delegate’s decision.

2. A writ of mandamus issue to the Second Respondent absolute in the first instance in the same matter directing it to decide the Applicant’s review application according to law.

3. The First Respondent pay the Applicant’s costs of the proceedings as taxed or agreed.

3. The First Respondent pay the Appellant’s costs of the appeal as taxed or agreed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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