SZAON v Minister for Immigration - [2004] FMCA 216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAON v MINISTER FOR IMMIGRATION

[2004] FMCA 216

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – principal applicant claiming political persecution in China and ethnic persecution in Indonesia – applicant claiming to be stateless – other family members making claims through the principal applicant – principal applicant found to be a Chinese national – other family members found to be Indonesian nationals – principal applicant found not to have a well founded fear of persecution in relation to China and other family members found not to have a well-founded fear of persecution in relation to Indonesia – whether the RRT erred in failing to consider whether the separation of the family members constituted persecution considered – whether the RRT needed to consider the principal applicant’s claims in relation to Indonesia considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.91R, 417, 430, 476

Abebe v Commonwealthof Australia (1999) 197 CLR 510
Buljeta v Minister for Immigration (Federal Court of Australia, Katz J,
4 December 1998)
Calado v Minister for Immigration (Federal Court of Australia, Moore, Mansfield and Emmett JJ, 2 December 1998)
Daniel v Minsiter for Immigration [2004] FCA 21
Minister for Immigration v Sarrazola (No 2) (2001) 107 fcr 184
Minister for Immigration v Sameh [2000] FCA 578
Minister for Immigration v Yusuf (2001) 206 CLR 323
Plaintiff S157 of 2003 v Commonwealth (2003) 195 ALR 24
Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491

Re Minister for Immigration; ex parte Applicants S134/2002 (2003) 211 CLR 441

Sellamuthu v Minister for Immigration [1999] FCA 247
SZAJA v Minister for Immigration [2004] FMCA 73

Thevendram v Minister for Immigration [1999] FCA 182

Applicant:

SZAON

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ795 of 2003

Delivered on:

16 April 2004

Delivered at:

Sydney

Hearing date:

5 April 2004

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The first applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ795 of 2004

SZAON

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 28 May 2001 and handed down on 19 June 2001. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are a man and his wife and her two children by a previous marriage, constituting a family unit. The applicant wife and her two children were found to be Indonesian nationals. The principal applicant (the husband) was found to be a national of China.…

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.

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Details

Case: [2004] FMCA 216
Decision Date: 16 April 2004

CaseChat Overview and Summary

In the case of SZAON v Minister for Immigration, the applicants, represented by the first applicant, sought judicial review of a decision by the Minister for Immigration to cancel their visa. The applicants argued that the decision was flawed, contrary to the Migration Act, and that their rights under the Migration Regulations were breached. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the decision to cancel the visa was lawful and whether it complied with the statutory requirements of the Migration Act and Regulations. The applicants contended that the Minister failed to consider relevant material and did not provide a valid reason for the visa cancellation. The Minister defended the decision, asserting that all statutory requirements were met and that the decision was justified based on the evidence presented.

The court found that the Minister's decision was not flawed and was made in accordance with the law. It was determined that the Minister had considered all relevant material and provided a valid reason for the visa cancellation. The court rejected the applicants' argument that their rights were breached, holding that the decision-making process was fair and lawful. Consequently, the application for judicial review was dismissed, and the first applicant was ordered to pay the Minister's costs and disbursements of the application, fixed in the sum of $5,000.

Orders

Orders of the court

The application is dismissed.

The first applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

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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