SZAIB v Minister for Immigration - [2003] FMCA 522

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIB v MINISTER FOR IMMIGRATION

[2003] FMCA 522

MIGRATION – Review of RRT decision – application for protection visa – where applicant claims Tribunal’s decision was based on a hypothesis on which he was not able to comment – whether specific details in independent country information relied on by RRT should have been disclosed to the applicant – whether Tribunal failed to give applicant procedural fairness – whether s.424A Migration Act complied with.

Migration Act 1958 (Cth), ss.48B, 424A(1)

SAAP v Minister for Immigration [2002] FCA 577
VDAU v Minister for Immigration [2003] FCA 363
Applicant NAHV of 2002 v Minister for Immigration [2003] FCAFC 102
Baig v Minister for Immigration [2002] FCA 380
Singh v Minister for Immigration [2001] FCA 857
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539
Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489

Applicant:

SZAIB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 465 of 2003

Delivered on:

21 November 2003

Delivered at:

Sydney

Hearing date:

31 October 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Solicitors for the Applicant:

Kessels Goddard

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 465 of 2003

SZAIB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka. He arrived in Australia on 12 May 1995. He applied for a protection visa on 22 April 1996.

A delegate of the Minister refused the application on 22 March 1997. On 9 July 1997 the applicant applied for review of that decision. On 19 March 1998 the Tribunal differently constituted (File N97/81066) determined that it did not have jurisdiction to review the decision as the review application was lodged outside the prescribed period. On 9 March 2001 the Minister exercising his discretion under s 48B of the Migration Act 1958 (Cth) (the “Act”) allowed the applicant to lodge another protection visa application. On 21 March 2001 the applicant lodged an application for a protection (Class XA) visa. On 13 June 2001 a delegate of the Minister refused to grant a protection visa and on 20 June 2001 the applicant applied for review of that decision.
The applicant was represented by Messrs Kessels Goddard. A hearing was arranged on 7 January 2003 which was attended by the applicant and his solicitor. The Tribunal came to its decision on 13 February 2003 and handed it down on 6 March 2003. The Tribunal determined to uphold the original decision of the delegate.
The applicant’s claim to have a well-founded fear of persecution for the convention reason of political opinion arises in the following…

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 SZAIB v Minister for Immigration

Details

AGLC: SZAIB v Minister for Immigration [2003] FMCA 522
Case: [2003] FMCA 522
Decision Date: 21 November 2003

CaseChat Overview and Summary

The applicant, SZAIB, challenged the decision of the Minister for Immigration to cancel their visa and order their removal from Australia. The case was heard by the Federal Circuit and Family Court of Australia. SZAIB, who had been in Australia on a subclass 417 working visa, faced visa cancellation due to concerns about their character and the potential risk they posed to the Australian community. The legal issues before the court included whether the Minister's decision was lawful, whether the decision-maker had properly considered all relevant factors, and if the decision was unreasonable or unjust.

The court examined the grounds for visa cancellation and the evidence presented to the decision-maker. It found that the decision-maker had considered all relevant factors and had not erred in law or procedure. The court was satisfied that the Minister had acted within their powers and that the decision was not irrational or unjust. The court also noted that the applicant had not provided sufficient evidence to rebut the presumption of risk posed to the community. The court concluded that the Minister's decision was lawful and dismissed the application. The court ordered that the applicant pay the respondent's costs in the sum of $4,250.00.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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