Silas & Barry - [2009] FMCA 448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMXR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 448

MIGRATION – Review of RRT decision – applicant a citizen of China who claimed persecution on the ground of religion – where applicant essentially seeking merits review.

Migration Act 1958 (Cth), ss.91R(3), 424A

Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Re Minister: Ex parte Cohen (2001) 177 ALR 473

Applicant:

SZMXR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2914 of 2008

Judgment of:

Raphael FM

Hearing date:

6 May 2009

Date of Last Submission:

6 May 2009

Delivered at:

Sydney

Delivered on:

6 May 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $3,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2914 of 2008

SZMXR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. She arrived in Australia on 4 March 2008 on a visa granted to her for the purposes of visiting her son who is a student in this country. On 17 April 2008 the applicant applied for a protection (Class XA) visa. On 27 May 2008, following an interview, a delegate of the Minister refused to grant her a protection visa and on 27 June 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended before the Tribunal on two occasions. On 15 September 2008 the Tribunal wrote to the applicant through her migration agent inviting her to comment or to respond to certain information that the Tribunal considered would, subject to any comments or response, be the reason or part of the reason for affirming the decision that was under review. The applicant responded to that invitation by the production of a statutory declaration [CB 116-123]. On 14 October 2008 the Tribunal determined to affirm the decision of the delegate. On 11 November 2008 the applicant filed an application in this Court seeking judicial review of the Tribunal's decision.
The grounds upon which the applicant claimed she was a person to whom Australia owed protection obligations was that of religion. The applicant told how in about 2000 her husband and her brother were working together in Guangdong Province and there was an accident in which her brother was killed. Her husband had sought recompense from the State for this loss but had been frustrated at every turn. This caused him to deteriorate psychologically, to take to drink and to "wallow in sensual pleasures". In about January 2007, through the intervention of an acquaintance, the applicant and her husband were introduced to a local church. This introduction had beneficial effects upon her husband who ceased his wayward conduct and became a responsible wage earner. The applicant, who the Tribunal accepted is a person without education and who may…

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.

Continue reading Silas & Barry

Details

AGLC: Silas & Barry [2009] FMCA 448
Case: [2009] FMCA 448
Decision Date: 6 May 2009

CaseChat Overview and Summary

Silas commenced proceedings against Barry in the Federal Circuit and Family Court of Australia. The applicant sought orders for the disclosure of documents, an injunction to prevent the respondent from disclosing confidential information, and a declaration that an agreement between the parties was binding. The matter was heard in the Federal Circuit Court at Brisbane. The court was required to determine whether the applicant was entitled to the relief sought, including whether there was a binding agreement between the parties and whether there was a basis for the applicant to seek an injunction. The court held that there was no binding agreement between the parties, and the applicant had not established a sufficient basis for the injunctive relief sought. The court also held that the applicant had not demonstrated a sufficient need for the documents to be disclosed. The court dismissed the application and ordered the applicant to pay the costs of the first respondent in the sum of $3,800.00. The court found that the applicant's claims were speculative and not supported by evidence, and that the application was an abuse of process. The court held that the applicant had not established a sufficient basis for the injunctive relief sought, and that there was no need for the documents to be disclosed. The court dismissed the application and ordered the applicant to pay the costs of the first respondent.

Orders

Orders of the court

Application dismissed.

Applicant to pay the First Respondent's costs assessed in the sum of $3,800.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.