SZSZW v Minister for Immigration and Border Protection [2015] FCA 562

SZSZW v Minister for Immigration and Border Protection [2015] FCA 562

The Tribunal did not expressly mention the extortion claim, did not quote or refer to the parts of the country information dealing with extortion, and its general references to the return process did not provide a basis to infer active consideration of that issue. The only available inference was that the claim was overlooked, amounting to a failure to complete the review required by law. Grounds concerning scarring and interrogation on return were not made out because, read fairly as a whole, the Tribunal's reasons showed those matters were considered.

Jurisdiction
Australia
Judgment Date
05 June 2015
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissing Application for Judicial Review of Refugee Review Tribunal Decision / Appeal
Outcome
Appeal allowed with costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'refugees Convention' 'returned Failed Asylum Seeker' 'fear of Persecution' 'extortion' 'jurisdictional Error']
['migration Law' 'administrative Law'] ['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'refugees Convention' 'returned Failed Asylum Seeker' 'fear of Persecution' 'extortion' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissing Application for Judicial Review of Refugee Review Tribunal Decision / Appeal

Legal Issues

  1. 1 ["Whether the Tribunal failed to consider the appellant's claim that he may be the victim of extortion at the airport upon return to Sri Lanka." 'Whether the Tribunal failed to consider risks by reason of visible scars in the context of the returned asylum seeker claim.' 'Whether the Tribunal failed to consider fear of persecution by torture on arrival in the clearance process for entry when determining whether the appellant would be regarded as an LTTE supporter.']

Ratio Decidendi

The Tribunal did not expressly mention the extortion claim, did not quote or refer to the parts of the country information dealing with extortion, and its general references to the return process did not provide a basis to infer active consideration of that issue. The only available inference was that the claim was overlooked, amounting to a failure to complete the review required by law. Grounds concerning scarring and interrogation on return were not made out because, read fairly as a whole, the Tribunal's reasons showed those matters were considered.

Court Disposition

Appeal allowed with costs.

Orders

  • ['The appeal is allowed.' "The first respondent pay the appellant's costs in the Federal Court of Australia as assessed or agreed." 'Set aside the orders made by the Federal Circuit Court on 26 February 2015 and in lieu thereof order absolute in the first instance for a writ of certiorari to quash the decision of...