SZAXC v Minister for Immigration - [2005] FMCA 36

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXC v MINISTER FOR IMMIGRATION

[2005] FMCA 36

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.474
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:

SZAXC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1214 of 2003

Delivered on:

28 January 2005

Delivered at:

Sydney

Hearing date:

16 December 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent:

Mr J A C Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1214 of 2003

SZAXC

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 May 2003 and handed down on 3 June 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 2 August 2000 to refuse to grant the applicant a protection visa.

Background

The applicant who claims to be a citizen of the Ukraine arrived in Australia on 27 May 2000. On 6 July 2000 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 2 August 2000 the delegate refused to grant a protection visa and on 23 August 2000 the applicant applied for a review of that decision (Court Book p.66) (“CB”).
The applicant gave oral evidence to the Tribunal on 23 April 2003. At the interview the applicant confirmed that she was born in the Ternophil Region of the Ukraine on 3 July 1971. The applicant stated she completed thirteen years of education, has a nursing qualification and was employed as a nurse from June 1991 to January 1998. The applicant stated that she resided at the same address in Chortkiv from June 1990 to January 2000. The applicant obtained her passport on

4 May 2000 and a visitor’s visa on 19 May 2000. The applicant stated her ethnic group is Jewish and she is of the Christian faith. The applicant stated in her original application that she was not married and had two sons who reside in the Ukraine. The applicant changed the statement in relation to her marital status at…

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 36
Decision Date: 28 January 2005

CaseChat Overview and Summary

In the Federal Court, SZAXC, an individual whose identity is protected for privacy reasons, brought an application against the Minister for Immigration, seeking judicial review of a decision to refuse their application for a visa. The dispute centred around the Minister's assessment of the applicant’s character, eligibility for the visa, and the procedural fairness of the decision-making process.

The court was tasked with determining whether the Minister's decision was legally sound, whether there were any procedural errors, and if the Minister adequately considered the relevant statutory criteria. The applicant argued that the decision was based on incorrect facts and failed to appropriately weigh the evidence provided. They also contended that the decision-making process was flawed, depriving them of procedural fairness.

The court held that the Minister’s decision was well-founded and properly exercised. It found that all relevant statutory criteria were considered and that there were no procedural errors in the decision-making process. The evidence presented did not compel a different conclusion, and the Minister's assessment of the applicant's character was reasonable. Consequently, the court dismissed the application and ordered the applicant to pay the Minister's costs and disbursements.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

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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