SZASH v Minister for Immigration - [2004] FMCA 587

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASH v MINISTER FOR IMMIGRATION

[2004] FMCA 587

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal for a protection visa – no reviewable error found.

Migration Act 1958 (Cth), s.474

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 195 ALR 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
NARV v Minister for Immigration & Multicultural Affairs [2003] FCAFC 262
NAHV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1353
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 361

Applicant:

SZASH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ993 of 2003

Delivered on:

17 September 2004

Delivered at:

Sydney

Hearing date:

11 August 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:

Ms R Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs set in the amount of $4,700 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ993 of 2003

SZASH

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 5 May 2003 affirming a decision of a delegate of the respondent made on 22 February 2001 to refuse to grant the applicant a protection visa.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 19 October 2000. On 20 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”).
On 22 February 2001 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa and on 15 March 2001 the applicant applied for review of that decision by the Tribunal. On 5 May 2003 the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa.

The history

The applicant is a single Muslim man from Bangladesh and was born on 1 November 1968. His parents and siblings remain in Bangladesh. The applicant has completed tertiary education and both a Bachelor and Masters Degree of Commerce. His occupation before coming to Australia was that of a “business man”. The applicant states that he speaks, reads and writes both Bengali and English.
In his statutory declaration attached to his visa application, he claims to be a prominent activist and belong to the…

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 587
Decision Date: 17 September 2004

CaseChat Overview and Summary

Federal Circuit and Family Court of Australia Rules 2021. This case involves an applicant, SZASH, who has applied for a judicial review of a decision made by the Minister for Immigration. The applicant challenges the Minister's decision to refuse to grant them a visa. The court was required to determine whether the Minister's decision was legally sound, and whether the applicant had a right to challenge the decision through judicial review. The court considered whether the Minister's decision was based on relevant and irrelevant considerations, and whether the decision was made in accordance with the law.

The court found that the Minister's decision was based on relevant considerations and was made in accordance with the law. The court also found that the applicant did not have a valid basis for challenging the decision through judicial review. The court dismissed the application and ordered that the applicant pay the respondent's costs. The court found that the Minister's decision was based on relevant considerations and was made in accordance with the law. The court also found that the applicant did not have a valid basis for challenging the decision through judicial review. The court concluded that the Minister's decision was not legally flawed, and that the applicant did not have a right to challenge the decision through judicial review. The court dismissed the application and ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

The application is dismissed.

The applicant pay the respondent’s costs set in the amount of $4,700 pursuant to Rule 21.02(2)(a) of the

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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