SZRFP v Minister for Immigration and Border Protection [2016] FCA 522

SZRFP v Minister for Immigration and Border Protection [2016] FCA 522

Although the primary judge erred in concluding that s 197C applied to the appellant, that error did not determine the appeal because s 197C played no part in the assessor's reasons and the Court could consider whether the ITOA was affected by legal error. The assessor applied the correct real chance test, treated the UNHCR guidelines and DFAT report as evidence rather than binding legal standards, and made findings open on the evidence that the appellant was not a leader or high profile LTTE member and was not closely related to family with a high risk profile. The appellant identified no unconsidered claim, wrong legal inquiry, or jurisdictional error; his challenge was an impermissible...

Jurisdiction
Australia
Judgment Date
13 May 2016
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning an International Treaties Obligations Assessment / Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['non Refoulement Obligations' 'international Treaties Obligations Assessment' 'judicial Review' 'section 197 C of the Migration Act 1958 (cth)' 'complementary Protection' 'country Information' 'costs' 'adjournment']
['migration Law' 'administrative Law' 'human Rights'] ['non Refoulement Obligations' 'international Treaties Obligations Assessment' 'judicial Review' 'section 197 C of the Migration Act 1958 (cth)' 'complementary Protection' 'country Information' 'costs' 'adjournment']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning an International Treaties Obligations Assessment / Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in applying s 197C of the Migration Act 1958 (Cth).' 'Whether the assessor asked herself the wrong question or applied the wrong test in using UNHCR guidelines and a DFAT report to assess the risk of persecution or significant harm.' "Whether the assessor's treatment of country information involved jurisdictional or legal error." 'Whether the appeal should be adjourned pending the High Court appeal in SZSSJ.' 'Whether costs should follow the event.']

Ratio Decidendi

Although the primary judge erred in concluding that s 197C applied to the appellant, that error did not determine the appeal because s 197C played no part in the assessor's reasons and the Court could consider whether the ITOA was affected by legal error. The assessor applied the correct real chance test, treated the UNHCR guidelines and DFAT report as evidence rather than binding legal standards, and made findings open on the evidence that the appellant was not a leader or high profile LTTE member and was not closely related to family with a high risk profile. The appellant identified no unconsidered claim, wrong legal inquiry, or jurisdictional error; his challenge was an impermissible...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' "The appellant is to pay the first respondent's costs as agreed or taxed."]