SZTAP v Minister for Immigration and Border Protection [2017] FCA 1370

FEDERAL COURT OF AUSTRALIA

SZTAP v Minister for Immigration and Border Protection [2017] FCA 1370 Appeal from: SZTAP v Minister for Immigration and Border Protection & Anor [2017] FCCA 1510

File number: NSD 1203 of 2017

Judge: GRIFFITHS J

Date of judgment: 27 November 2017

Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – whether primary judge erred in not finding that the Administrative Appeals Tribunal misapplied the "well-founded fear test" Held: appeal dismissed with no order as to costs

Legislation: Migration Act 1958 (Cth) s 36

Cases cited: BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; 241 FCR 450 SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404

Date of hearing: 22 November 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 26

Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter

Solicitor for the Respondent: Ms B Perris of Clayton Utz

ORDERS NSD 1203 of 2017

BETWEEN: SZTAP Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: GRIFFITHS J DATE OF ORDER: 27 November 2017

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J: 1 This is an appeal from a decision and orders of the Federal Circuit Court of Australia (FCCA). The decision, which was published on 30 June 2017, is reported as SZTAP v Minister for Immigration and Border Protection & Anor [2017] FCCA 1510. In an ex tempore judgment, the primary judge rejected the appellant's judicial review application in respect of a decision of the Administrative Appeals Tribunal (the AAT). The AAT affirmed a decision dated 11 February 2013 of the Minister's delegate which refused the appellant a protection visa. The delegate's decision was previously affirmed by a differently constituted AAT on 17 June 2013. That decision was subsequently set aside on 9 December 2015 by the Full Court (see SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 (SZTAP Full Court)). 2 This appeal relates to the primary judge's decision in respect of the decision of the AAT on that remitter, which decision was published on 15 April 2016.