SZAAE v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAE & ORS v MINISTER FOR IMMIGRATION [2003] FMCA 176

MIGRATION – Review of decision of Refugee Review Tribunal – application for protection visa – where applicants had gained refugee status in another country and now seek protection from Australia – whether the applicant’s were in receipt of effective protection in France – whether the applicants were excluded from Australia’s protection in accordance with s.36(3) of the Act – whether the Tribunal considered the substantive merits of the applicant’s application for refugee status – whether the Tribunal made a jurisdictional error by coming to the conclusion that the applicants could return to France.

Migration Act 1958 (Cth), s.36(3)

Australian Broadcasting Tribunal v Bond (1991) 70 CLR 321
Applicant S134/2002 [2003] HCA 1
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Waterford v The Commonwealth (1987) 163 CLR 54
Re Minister for Immigration; Ex parte Cohen [2001] HCA 10
Minister for Immigration v Bhardwaj (2002) 187 ALR 117

First Applicant:	SZAAE
Second Applicant:	SZAAF
Third Applicant:	SZAAG
Fourth Applicant:	SZAAH
Fifth Applicant:	SZAAI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 863 of 2002

Delivered on: 16 May 2003

Delivered at: Sydney

Hearing date: 2 May 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicants: M J Patel

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 863 of 2002

SZAAE

First Applicant

SZAAF

Second Applicant

SZAAG

Third Applicant

SZAAH

Fourth Applicant

SZAAI

Fifth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicants in this matter are a family of Sri Lankan citizens.  They arrived in Australia as temporary business entrants in August 2000 and applied for protection (Class XA) visas on 10 October 2000.  The family’s application was considered by a delegate of the Minister.  On 10 January 2001 the delegate refused to provide the applicants with protection.  The applicants sought review from the Refugee Review Tribunal which decided to uphold the delegate’s decision on 31 July 2002 and handed down that decision on 21 August 2002. 

2. In its reasons for decision the Tribunal noted that only the first named applicant had made specific claims under the Refugees Convention.  The other members of the family claimed to be members of her family unit and as such were entitled to combine their applications with hers.  The Tribunal throughout its reasons refers to the first named female applicant as “the applicant”.  I will follow that course as well. 

3. Although the applicant and her family are Sri Lankan Tamils from the Jafna peninsula they left their country of origin in or about 1990 and have since been resident in France where their two younger children were born.  The applicant and her husband were both granted refugee status in France and had received certificates indicating that that status was, in the…