SZWCC v Minister for Immigration - [2015] FCCA 1748

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCC v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1748

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Whether the Tribunal made a finding based on no evidence – whether the Tribunal considered the wrong issue when determining the applicant’s arrest upon his return to Sri Lanka – whether the Tribunal misconstrued the complementary protection provisions of degrading treatment or punishment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 46A(2), 91R

Australian Postal Corporation v D’Rozario (2014) 222 FCR 303

Minister for Immigration & Border Protection v WZAPN (2015) 89 ALJR 639

SZSPE v Minister for Immigration & Border Protection [2014] FCA 267

SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64
SZTCY v Minister for Immigration & Border Protection [2015] FCCA 85
WZAPN v Minister for Immigration & Border Protection [2014] FCA 947

Applicant:

SZWCC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 331 of 2015

Judgment of:

Judge Smith

Hearing date:

5 June 2015

Date of Last Submission:

23 June 2015

Delivered at:

Sydney

Delivered on:

2 July 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents:

Mr L. Dennis, Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 331 of 2015

SZWCC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a Tamil who seeks protection in Australia from the authorities of Sri Lanka. The Refugee Review Tribunal’s duties included the consideration of the bases for his claims and the evidence given by him in support of them. The issue for the Court is whether the Tribunal fulfilled that duty.
That issue requires a close analysis of both the claims and the way in which the Tribunal dealt with them. That analysis reveals that the Tribunal performed its statutory task and that the application must be dismissed.

Background

The applicant claimed that a friend of his was kidnapped on 3 December 2003 and that the applicant complained to the police about the disappearance. The applicant told the police about an armed group that had asked his friend to interpret for them and teach them English and in this way that group became a suspect in the abduction.
The applicant claimed that he started receiving threatening phone calls from January 2004 telling him that he was giving out the wrong names and that he should mind his own business or his wife would become a widow. At the end of 2004 he was telephoned again and told to meet somebody in a particular hotel. He did so and then was taken from there to an LTTE camp where, after being threatened was released the following day.
In 2007 some members of the armed group stopped the applicant and warned him again and he received…

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: [2015] FCCA 1748
Decision Date: 2 July 2015

CaseChat Overview and Summary

The applicant, SZWCC, sought judicial review of a decision by the Refugee Review Tribunal (RRT) 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 RRT had erred in its assessment of SZWCC's claims for protection, particularly in relation to potential persecution upon return to Sri Lanka.

The court was required to determine whether the RRT had made a finding based on no evidence, whether it had considered the wrong issue when assessing the risk of arrest upon the applicant's return to Sri Lanka, and whether it had misconstrued the complementary protection provisions concerning degrading treatment or punishment. The central question was whether any of these alleged errors constituted jurisdictional error.

Judge Smith found that the RRT had not made a finding based on no evidence, nor had it considered the wrong issue regarding the applicant's potential arrest. Furthermore, the court determined that the RRT had correctly applied the complementary protection provisions. Consequently, no jurisdictional error was established. The application for judicial review was dismissed.

Orders