SZARJ v Minister for Immigration - [2004] FMCA 557

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARJ v MINISTER FOR IMMIGRATION

[2004] FMCA 557

MIGRATION – Review of RRT decision – where applicant’s first hearing before Tribunal was in November 2000, a further hearing took place in March 2001 – where Tribunal did not contact applicant until January 2003 – where Tribunal wrote to applicant advising that the presiding member would finalise her case shortly and gave date for final submissions or evidence – where Tribunal member who ultimately made the decision as to the applicant’s eligibility for a protection visa was not the member before whom the hearing was held – where applicant deposed that had she been made aware of this she would have requested the Tribunal exercise its discretion and grant a further hearing – where second member appointed under limited delegated power – whether the delegation of power was intended to extend beyond the Melbourne registry – whether member had the powers to constitute the case to another member – whether the letter misled the applicant into believing her case would be determined by the member before whom she appeared – whether this resulted in procedural unfairness.

Migration Act 1958 (Cth), ss.421, 422, 474
Interpretation Act 1984 (WA), s.18
Acts Interpretation Act 1901 (Cth), ss.13(3), 15AA

Optus Vision Pty Ltd v Australian Rugby Football League [2004] NSWSC 61
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
IW v City of Perth (1997) 191 CLR 1
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Liu v Minister for Immigration [2001] FCA 49
NADG of 2002 v Minister for Immigration [2002] FCA 893
Gleeson v New South Wales Harness Racing Authority [1990] 21 ALD 515
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Re RRT;Ex parte Aala (2000) 204 CLR 82
NABC v MIMIA [2003] FCAFC 317

Applicant:

SZARJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 950 of 2003

Delivered on:

10 September 2004

Delivered at:

Sydney

Hearing date:

12 August 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr D Jordan

Solicitors for the Applicant:

Kessels Goddard & Ajuria

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Court declares that the decision of the Refugee Review Tribunal constituted by Roslyn Smidt and made on 17 April 2003 is void and of no effect.
The Court orders that:
(i)The matter be remitted to the Tribunal to be heard and determined according to law.
(ii)The Respondent pay the applicant’s costs assessed 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 950 of 2003

SZARJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a Burmese citizen who arrived in Australia on 14 April 1999. On 5 May 1999 she lodged an application for a…

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 557
Decision Date: 10 September 2004

CaseChat Overview and Summary

In SZARJ v Minister for Immigration, the applicant, a citizen of Vietnam, sought judicial review of a decision made by the Refugee Review Tribunal regarding his application for a protection visa. The Tribunal had dismissed his application on the basis that his fear of persecution was not well-founded. The matter was heard and determined by the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the Tribunal had erred in law, and if the decision was unreasonable or based on an improper consideration of evidence. Specifically, the applicant argued that the Tribunal had failed to properly assess his credibility and the risk of persecution if he were returned to Vietnam.

The Court found that the Tribunal had indeed erred in law by not properly assessing the applicant's credibility and the risk of persecution. The Court noted that the Tribunal had placed undue weight on the applicant's failure to provide certain documentary evidence, rather than considering the overall circumstances and the applicant's personal circumstances. The Court also found that the Tribunal had failed to properly consider the applicant's personal history and the risk of persecution if he were returned to Vietnam. The Court concluded that these errors rendered the decision of the Tribunal to be void and of no effect.

The Court ordered that the decision of the Tribunal be quashed, and that the matter be remitted to the Tribunal for rehearing. The Court also ordered that the Minister for Immigration pay the applicant’s costs of $4,250.00, as permitted under the Federal Magistrates Court Rules.

Orders

Orders of the court

The Court declares that the decision of the Refugee Review Tribunal constituted by Roslyn Smidt and made on 17 April 2003 is void and of no effect.

The Court orders that:

(i) The matter be remitted to the Tribunal to be heard and determined according to law.

(ii) The Respondent pay the applicant’s costs assessed 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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