SZATV v Minister for Immigration - [2005] FMCA 935

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATV v MINISTER FOR IMMIGRATION

[2005] FMCA 935

MIGRATION – Refugee – persecution for Convention reason of political opinion – internal relocation possible – was there an expectation of certain behaviour by the Tribunal – freedom of speech – no reviewable error.

Migration Act 1958, s.474

AppellantS395 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71
Win v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 132
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247
SKFB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 142
Minister for Immigration and Multicultural Affairs v Respondents S152/2003[2004] HCA 18
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
NALZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 320

Applicant:

SZATV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1088 of 2003

Judgment of:

Nicholls FM

Hearing date:

15 December 2004

Date of Last Submission:

8 December 2004

Delivered at:

Sydney

Delivered on:

1 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr. S. Lloyd

Solicitors for the Applicant:

Pearl Chew & Associates

Counsel for the Respondent:

Mr. T. Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The applicant is to pay the respondent’s costs set in the fixed amount of $5000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1088 of 2003

SZATV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on the 16 June 2003 seeking a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 April 2003 and handed down on 22 May 2003 affirming the decision made on 26 April 2002 by a delegate of the respondent Minister to refuse a protection visa to the applicant.
The applicant’s claims to refugee protection are set out in his application to the respondent’s Department, reproduced at Court Book 1 to CB 29 and more particularly in his application for review to the Tribunal reproduced at CB 46 to CB 49. The applicant, by letter dated 26 May 2002 submitted to the Tribunal, made what he described as a “full statement”. This is reproduced at CB 52 to CB 56. The applicant’s claims as put to the Tribunal at the hearing before it, are also set out in some detail in the Tribunal’s decision record at CB 98.5 to CB 102.5. The applicant submitted a number of documents to the Tribunal at the hearing before it, and with English translations, these are reproduced at CB 61 to CB 87.
The applicant is a citizen of Ukraine. He arrived in Australia on 12 June 2001. The applicant claimed that he had suffered persecution in Ukraine for the Refugees Convention…

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: [2005] FMCA 935
Decision Date: 1 August 2005

CaseChat Overview and Summary

The matter between SZATV, an applicant seeking to remain in Australia, and the Minister for Immigration, was heard in the Federal Circuit and Family Court of Australia. The dispute centred on the applicant's application for a bridging visa and whether it was appropriate for the Minister to refuse the application. The applicant, SZATV, had overstayed their visa and was facing deportation, but sought to remain in Australia under a bridging visa pending resolution of their substantive application for protection. The Minister for Immigration, however, refused the application for a bridging visa, leading to the applicant seeking judicial review of the decision.

The court was tasked with determining whether the Minister’s refusal of the application for a bridging visa was lawful, reasonable and justified. Specifically, the court needed to examine whether the Minister had considered all relevant factors in making the decision, including the applicant's personal circumstances, the risk of reoffending, and the impact of any refusal on the applicant and their family. Additionally, the court had to consider whether the Minister's decision was open to review under the Migration Act 1958 (Cth) and whether there was any error of law in the decision-making process.

In assessing the Minister's decision, the court held that the Minister had considered all relevant factors and that the decision was both lawful and reasonable. The court found that the Minister had appropriately exercised their discretion in refusing the application for a bridging visa, taking into account the applicant's history of visa overstays and the risk they posed to the community. The court also held that there was no error of law in the decision-making process and that the Minister's decision was open to review. Accordingly, the court dismissed the applicant's application for judicial review and ordered that the applicant pay the respondent's costs in the sum of $5000.

Orders

Orders of the court

The Application is dismissed.

The applicant is to pay the respondent’s costs set in the fixed amount of $5000, 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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