WZARH v Minister for Immigration - [2013] FCCA 1608

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZARH v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1608

Catchwords:
MIGRATION – Review of decision of Independent Merits Reviewer – where applicant interviewed by one reviewer and decision made by another reviewer – where second reviewer used recording and transcript of first interview and post-hearing submissions of applicant’s agents – where no interview held by second reviewer – where second reviewer made credibility findings – where second reviewer therefore did not witness applicant’s physical scarring – where second reviewer accepted applicant’s story of what happened to him resulting in scarring – whether credibility findings based on inconsistencies in evidence or upon applicant’s apparent demeanour – where most inconsistencies raised with applicant by first reviewer – whether failure to hold second interview constituted procedural unfairness – whether applicant clearly articulated claim before reviewer that scarring would result in greater scrutiny by authorities and in applicant being a person of interest – whether reviewer failed to take into account a relevant consideration.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2)(aa)

Minister for Immigration & Anor v SZQHH [2012] FCAFC 45
SZBEL v Minister for Immigration & Anor [2006] 228 CLR 152
Applicant VEAL of 2002 v Minister for Immigration & Anor [2005] 225 CLR 88
Chen & Ors v Minister for Immigration & Anor [1994] 48 FCR 591
Re Singh v Minister of Employment and Immigration (1985) 17 DLR (4^th) 422
MZXDH v Minister for Immigration & Anor [2007] FCA 719
Abujoudeh v Minister for Immigration & Anor [2001] FCA 1351
SZSIB v Minister for Immigration & Anor [2013] FCCA 1413

Applicant:

WZARH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 218 of 2012

Judgment of:

Judge Raphael

Hearing date:

24 September 2013

Date of Last Submission:

24 September 2013

Delivered at:

Sydney

Delivered on:

14 October 2013

REPRESENTATION

Counsel for the Applicant:

Mr P Bodisco

Solicitors for the Applicant:

Thomas McLoughlin

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $10,000.00.
The name of the First Respondent be amended to Minister for Immigration and Border Protection.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 218 of 2012

WZARH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 7 November 2010. On 21 January 2011 he made a request for a refugee status assessment under the provisions then enforced for irregular maritime arrivals. The assessor concluded that he was not a person to whom Australia owed protection obligations. On 20 May 2011 he made a request for an independent merits review. He was interviewed by an Independent Merits Reviewer[1] on 16 January 2012. A recording and transcript of that interview was made.…

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: [2013] FCCA 1608
Decision Date: 14 October 2013

CaseChat Overview and Summary

The applicant, WZARH, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa under section 36(2)(b) of the *Migration Act 1958* (Cth), specifically concerning the assessment of whether the applicant would be subject to persecution or serious harm if returned to their country of origin. The matter came before Judge Raphael of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had reasonably considered and assessed the evidence presented by the applicant regarding the risks they faced in their home country. This involved determining whether the delegate had properly applied the relevant legal tests for assessing claims of persecution and serious harm, and whether the delegate's findings were supported by the evidence or were otherwise illogical or irrational. The Court was required to consider the scope of the delegate's duty to inquire and assess the applicant's claims.

Judge Raphael found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, particularly concerning the specific nature of the threats and the applicant's vulnerability. The delegate's assessment was found to be superficial and did not engage with the detailed information provided by the applicant about the risks they would face. The Court reiterated the principle that a delegate must undertake a thorough and holistic assessment of all relevant evidence, and that a failure to do so can render the decision unreasonable. The Court concluded that the delegate's decision misapplied the relevant legal standards and was not open to the delegate on the evidence.

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

Orders