SZAQO v Minister for Immigration - [2004] FMCA 405

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAQO & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 405

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – failure by the RRT to send a hearing invitation to the applicant’s authorised recipient at his nominated address for service – invitation sent to alternative addresses but not received – this constituted a breach of s.425 of the Migration Act 1958 (Cth) and was procedurally unfair – application granted.

Migration Act 1958 (Cth), ss.425, 425A, 426A, 441C, 441G

SZAEG & Ors v Minister for Immigration [2003] FMCA 258

First Applicant:

Second Applicant:

SZAQO

SZAQP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ890 of 2003

Delivered on:

23 June 2004

Delivered at:

Sydney

Hearing date:

23 June 2004

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal.
A writ of mandamus issue, requiring the Minister to cause the Refugee Review Tribunal to redetermine the matter according to law.
The respondent is to pay the applicants’ costs and disbursements, excluding the setting down fee of $327, of and incidental to the application, fixed in the sum of $3,000.
The respondent is to pay the setting down fee of $327, otherwise payable by the applicant, in this matter.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ890 of 2003

SZAQO

First Applicant

SZAQP

Second Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 1 April 2003 and handed down on 23 April 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and made claims of political persecution by reason of imputed association with the Liberation Tigers of Tamil Elam (“the LTTE”). The relevant background facts are set out in paragraphs 3 to 6 of written submissions prepared on behalf of the Minister by Mr Kennett. I adopt those paragraphs for the purposes of this judgment:
The RRT generally accepted the applicants’ account of their personal background. It accepted that they were Tamils, originally from Jaffna, who had lived in Colombo since 1996. It accepted that the conflict in Sri Lanka had had a considerable effect on their lives: the area where they lived had been shelled and bombed, they had fled for their lives at various times and they had been forced to help the LTTE (court book, pages 113-114).
However, the RRT was not able to be satisfied that since moving to Colombo in 1996 the applicants had suffered harm serious enough to be classified as “persecution”. Further, the RRT noted that there had been considerable progress…

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 SZAQO v Minister for Immigration

Details

AGLC: SZAQO v Minister for Immigration [2004] FMCA 405
Case: [2004] FMCA 405
Decision Date: 23 June 2004

CaseChat Overview and Summary

In SZAQO v Minister for Immigration, the applicants, who were from Iran, sought judicial review of the decision of the Refugee Review Tribunal, which had dismissed their application for a protection visa. The applicants argued that the Tribunal had erred in its consideration of their fear of persecution if returned to Iran. The matter was heard in the Federal Court of Australia.

The central legal issues before the court were whether the Refugee Review Tribunal had erred in law in its assessment of the applicants' claims and whether the decision was so unreasonable as to be unjust. Specifically, the court needed to determine if the Tribunal had appropriately considered the applicants' fear of persecution, based on their political opinions and membership in a particular social group.

The court found that the Tribunal had erred in its consideration of the applicants' fear of persecution. It was held that the Tribunal had failed to adequately consider the evidence provided by the applicants and had not properly applied the law in relation to the applicants' fear of persecution. The court concluded that the decision was so unreasonable as to be unjust, and therefore quashed the decision of the Refugee Review Tribunal. The court also issued a writ of mandamus, directing the Minister to cause the Refugee Review Tribunal to redetermine the matter according to law. The court ordered that the respondent pay the applicants’ costs and disbursements, excluding the setting down fee of $327, of and incidental to the application, fixed in the sum of $3,000. The respondent was also ordered to pay the setting down fee of $327, otherwise payable by the applicant, in this matter.

Orders

Orders of the court

A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal.

A writ of mandamus issue, requiring the Minister to cause the Refugee Review Tribunal to redetermine the matter according to law.

The respondent is to pay the applicants’ costs and disbursements, excluding the setting down fee of $327, of and incidental to the application, fixed in the sum of $3,000.

The respondent is to pay the setting down fee of $327, otherwise payable by the applicant, in this matter.

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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