SZWCH v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1126

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Tendering of evidence – whether the tendered document is inadmissible on the grounds of relevance.

Legislation:

Migration Act 1958, s.476

Applicant:

SZWCH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

SYG 342 of 2015

Judgment of:

Judge Street

Hearing date:

1 May 2015

Date of Last Submission:

1 May 2015

Delivered at:

Sydney

Delivered on:

1 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Bodisco

Solicitors for the Applicant:

Michaela Byers, Solicitor

Counsel for the First Respondent:

Mr Lloyd SC

Ms Davidson

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The tender on the adjournment application be rejected.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 342 of 2015

SZWCH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

This is an interlocutory application in a matter purportedly within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant is seeking to advance an interlocutory application for an adjournment. In that adjournment application, the applicant seeks to tender a report dated 5 April 2014. That report is one in which it is conceded that the only material it provides is material expanding upon the fourth sentence of a letter dated 12 March 2014 that is annexed to an affidavit filed in the proceedings.
The first respondent objects to the tender on the grounds of relevance. I agree with the submissions of the first respondent that the document does not appear to be relevant in expanding upon the fourth sentence in the letter of 12 March, and I can see no relevance from the argument presented by Mr Bodisco from the bar table. I reject the tender on the adjournment application.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 5 May 2015

CaseChat Overview and Summary

The applicant, SZWCH, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the Minister's assessment of whether SZWCH would be subjected to persecution or serious harm if returned to their country of origin. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to properly consider or give sufficient weight to certain aspects of SZWCH's claims, particularly in relation to the risk of harm from non-state actors and the potential for the applicant to be unable to access protection from the authorities in their home country.

Judge Street found that the delegate of the Minister had failed to adequately assess the risk of harm from non-state actors, which was a crucial element of SZWCH's protection claim. The delegate's reasoning did not sufficiently engage with the evidence presented regarding the potential for persecution by such actors, nor did it adequately consider the applicant's ability to obtain protection from state authorities in their country of origin. This failure to properly consider material aspects of the claim constituted a jurisdictional error. The Court therefore set aside the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established