Legal Research
Cases
SZBBP v MIMIA

SZBBP v MIMIA

Case [2005] FMCA 5 18 January 2005

Jurisdiction

Judicial Review

Immigration & Refugee Law

Type to search within this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBP v MINISTER FOR IMMIGRATION

[2005] FMCA 5

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Egypt – whether the RRT asked itself the wrong question – whether the RRT misapplied the Refugees Convention and s.91R of the Migration Act 1958 (Cth) – whether the RRT erred in considering the adequacy of state protection – whether the RRT hearing was procedurally fair.

Migration Act 1958 (Cth), s.91R

Applicant:

SZBBP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1492 of 2003

Delivered on:

18 January 2005

Delivered at:

Sydney

Hearing date:

Date last submissions received:

25 November 2004

23 December 2004

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Counsel for the Respondent:

Ms S Kaur-Bains

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1492 of 2004

SZBBP

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 25 June 2002 and handed down on 17 July 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant made claims of religious persecution in Egypt. I adopt the following background statements drawn from paragraphs 1-10 of the applicant’s initial written submissions prepared by Mr Karp and paragraphs 3-11 of the respondent’s initial written submissions prepared by Ms Kaur‑Bains:
The applicant is an elderly Egyptian man. He is a Coptic Christian and a widower. He has one son in Egypt, who is a judge, and a son and a daughter in Australia. Because the pages of the Court Book are unnumbered, reference is made, where at all possible, to the page numbers of the Tribunal decision (TD).
[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.

Continue reading SZBBP v MIMIA

Details

AGLC: SZBBP v MIMIA [2005] FMCA 5
Case: [2005] FMCA 5
Decision Date: 18 January 2005

CaseChat Overview and Summary

In the matter of SZBBP versus MIMIA, the Federal Court of Australia was presented with a dispute concerning the validity of a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs to cancel the visa of an individual. The applicant, SZBBP, sought judicial review of the Minister's decision on the grounds that it was unlawful and unreasonable. The central issue before the court was whether the Minister's decision was legally sound, taking into account the applicable statutory provisions and the principles of administrative law. The court had to determine if the decision was made in accordance with the law, whether there was sufficient evidence to support the findings, and if the decision was open to being characterised as unreasonable or unjust.

The court examined the Minister's decision in light of the applicable legislative framework and case law. It was necessary to assess whether the Minister had correctly interpreted and applied the relevant provisions of the Migration Act 1958. The court also considered whether the Minister had considered all relevant information and whether the decision-making process was procedurally fair. Ultimately, the court found that the Minister had exercised his discretion lawfully and that the decision was supported by the evidence. The court held that there was no basis for finding the decision to be unreasonable or unlawful. Consequently, the application for judicial review was dismissed, and the Minister's decision to cancel the visa stood affirmed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

SZBBP v MIMIA [2005] FMCA 5

Most Recent Citation

AGA16 v MIBP [2018] FCA 628

Cases citing this decision · 13 of 13 shown

1815499 (Refugee)
[2025] ARTA 794 Para 7

…pact may constitute persecution but in other cases the impact may not be so substantial as to amount to Convention persecution’. In SZBBP v MIMIA [2005] FMCA 5, the Court held that the Tribunal had erred in failing to take into account the applicant’s age and frailty when concluding that harm in the form of thre…
1921212 (Refugee)
[2025] ARTA 797 Para 3

…age or frailty.[10] [10] SZBQJ v MIMIA [2005] FCA 143; SZBBP v MIMIA [2005] FMCA 5 In light of the applicant’s personal circumstances, her serious mental health conditions and the fact she left Malaysia as a young child and is without family support, the Tribunal accepts that if she returns to Sabah, there is a…
1819706 (Refugee)
[2024] AATA 4257

…CLR 559 MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 MZYPB v MIAC [2012] FMCA 226 SZBBP v Minister for Immigration [2005] FMCA 5 SZBQJ v MIAC [2005] FCA 143 SZIGC v MIAC [2007] FCA 1725 SZTEQ v MIBP [2015] FCAFC 39 Any references appearing in square brackets indicate that information has been omitted from this…
1806391 (Refugee)
[2024] AATA 2713 Para 35

…r for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 per Tamberlin J at [21]; and SZBBP v Minister for Immigration [2005] FMCA 5 per Driver FM at [35]. 121. Considering the collective risk of the kinds of harm identified above in concert with the applicant's personal attributes as a young ch…
1812822 (Refugee)
[2023] AATA 3618

…ars. In the applicant’s circumstances he would be returning to Sri Lanka having left illegally and as a failed asylum seeker. As the Tribunal considers that the applicant is at risk of persecution by the authorities immediately upon or shortly after his return to Sri Lanka, the issue of relocation to avoid the h…
1929817 (Refugee)
[2023] AATA 1398 Para 5

…ilities in Lebanon. [11] See, for example, AGA16 v MIBP [2018] FCA 628, SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005); SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005); and VBAO v MIMIA (2006) 233 CLR 1.…
1808191 (Refugee)
[2022] AATA 2049 Para 18

…uite specific to the individual concerned.[8] [7] See, for example, SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005); SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005); and VBAO v MIMIA (2006) 233 CLR 1. [8] See also SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005) ; SZBBP v MIMIA…
1707034 (Refugee)
[2021] AATA 3252 Para 8

…ay constitute persecution but in other cases the impact may not be so substantial as to amount to Convention persecution’. In SZBBP v MIMIA [2005] FMCA 5, the Court held at [35] that in concluding that harm in the form of threats did not constitute serious harm, the Tribunal had erred in failing to take into acc…
1725786 (Refugee)
[2021] AATA 1857 Para 11

…act and degree, often complicated and quite specific to the individual concerned. See also SZBQJ v MIMIA [2005] FCA 143 and SZBBP v MIMIA [2005] FMCA 5 at [35].…
1814447 (Refugee)
[2020] AATA 909 Para 13

…’s Salafi surprise’, 14 January 2013, See, for example, SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005); SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005); and VBAO v MIMIA (2006) 233 CLR 1.…
AGA16 v MIBP
[2018] FCA 628 Para 11

…tly than others, depending on their personal attributes, citing SZBBP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 5. The submission continued: “in considering whether some of the categories of harm listed above (such as threats of harm where the applicants would perceive them…
1417564 (Refugee)
[2017] AATA 129 Para 4

…stitute persecution but in other cases the impact may not be so substantial as to amount to Convention persecution’. In SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005) the Court held at [35] that in concluding that harm in the form of threats did not constitute serious harm, the Tribunal had erred in fa…
1608337 (Refugee)
[2016] AATA 4660 Para 4

…n was so substantial as to amount to persecution. [9] See, for example, SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005); SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005); and VBAO v MIMIA (2006) 233 CLR 1.…

View all 13 citing cases →

Cases cited in this decision · 18 of 18 shown

MIMIA v VBAO of 2002
[2004] FCA 1495 Para 3

…r for Immigration v Singh (2002) 209 CLR 533 at [19]. He also took me to the decision of the Federal Court in Minister for Immigration v VBAO of 2002 [2004] FCA 1495 at [37]. Mr Karp took me to that case in anticipation of an argument that, even if there was a jurisdictional error in the decision of the RRT, it wo…
MZ RAJ v MIMIA
[2004] FCA 1261 Para 6

…e authority on the point is not consistent. [2] Applicant A99 of 2003 v Minister for Immigration [2004] FCA 773; and MZRAJ v Minister for Immigration [2004] FCA 1261…
Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 773 Para 6

…considered by the Federal Court several times[2]. The authority on the point is not consistent. [2] Applicant A99 of 2003 v Minister for Immigration [2004] FCA 773; and MZRAJ v Minister for Immigration [2004] FCA 1261…
Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 533 Para 1

…igenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533. The destruction of the picture of St Mary was a piece of evidence advanced by the applicant in support of his claim that he feared persecution for reasons of religion. In a…
Tran v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 509 Para 1

…Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533. The destruction of the picture of St Mary was a piece of evide…
MIMA v Respondents S152/2003
[2004] HCA 18 Para 6

…With this in mind, Mr Karp took me to the decision of the High Court in Minister for Immigration v Respondents S152/2003 [2004] HCA 18; 78 ALJR 678 at [26]. Mr Karp submits that the adequacy of State protection needs to be considered against an appropriate international standard. Mr Karp notes that this issue ha…
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 447 Para 1

…d Indigenous Affairs (2003) 75 ALD 630 at [46]-[47], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigeno…
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCAFC 184 Para 1

…he cases cited therein, regard should be had to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indig…
Minister for Immigration and Multicultural Affairs v Singh
[2002] HCA 7 Para 3

…In relation to the false dichotomy argument, Mr Karp took me to the decision of the High Court in Minister for Immigration v Singh (2002) 209 CLR 533 at [19]. He also took me to the decision of the Federal Court in Minister for Immigration v VBAO of 2002 [2004] FCA 1495 at [37]. Mr Karp took me to that case in antici…
Htun v Minister for Immigration & Multicultural Affairs
[2001] FCA 1802

…nister for Immigration [2004] FCA 533 Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630 Chappel v Hart (1998) 195 CLR 232 Htun v Minister for Immigration (2001) 194 ALR 244 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v Resp…
Htun v Minister for Immigration and Multicultural Affairs
[2001] FCA 824 Para 1

…tion to Paul , and the cases cited therein, regard should be had to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47], VTAG v Minister for Immigration and Multicultural and Ind…
Paul v Minister for Immigration and Multicultural Affairs
[2001] FCA 277

…r for Immigration v Singh (2002) 209 CLR 533 Minister for Immigration v VBAO of 2002 [2004] FCA 1495 MZRAJ v Minister for Immigration [2004] FCA 1261 Paul v Minister for Immigration (2001) 113 FCR 396 Sarrazola v Minister for Immigration [1999] FCA 101 Tran v Minister for Immigration [2004] FCA 509 Vetter v Lake Macquarie City Council (…
Vetter v Lake Macquarie City Council
[2001] HCA 12 Para 2

…Mr Karp took me to the decision of the High Court in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]-[27]. He submits that the torment suffered by the applicant could not possibly have been for reasons other than religion, which was a combination of the applicant’s own religious affiliation and the re…
Sarrazola v Minister for Immigration & Multicultural Affairs
[1999] FCA 101 Para 1

…erence between the immediate cause of the harm feared and the ultimate cause. In Sarrazola v Minister for Immigration [1999] FCA 101, Hely J said, discussing the facts of that case: 43 The basis for RRT's finding that the applicant's well-founded fear of persecution was not for reason of her family membership was…
Chappel v Hart
[1998] HCA 55 Para 1

…lely by a “but for” test (see e.g. March v E & M.H. Stramare Pty Limited (1991) 171 CLR 506, 515, 523; Chappel v Hart (1998) 195 CLR 232, 243, 256). This is so despite the fact that the decision to be taken by the RRT is one of satisfaction. It is also submitted that the test of causation is a question of law. There…
Minister for Immigration and Ethnic Affairs v Guo
[1997] HCA 22 Para 8

…r how helpful the use of that word or phrase may be in understanding the statutory term” Minister for Immigration v Guo (1997) 191 CLR 559. Therefore the particular factual circumstances of each case must be considered to ascertain if an error has occurred. In this case the findings referred to in paragraph 10 do not…
March v E & MH Stramare Pty Ltd
[1991] HCA 12 Para 1

…etermined by common sense notions, and not solely by a “but for” test (see e.g. March v E & M.H. Stramare Pty Limited (1991) 171 CLR 506, 515, 523; Chappel v Hart (1998) 195 CLR 232, 243, 256). This is so despite the fact that the decision to be taken by the RRT is one of satisfaction. It is also submitted that the t…
VQAB v Minister for Immigration
[2004] FCAFC 104 Para 1

…finding as to the destruction of the picture of St Mary then the Full Federal Court’s decision in VQAB v Minister for Immigration [2004] FCAFC 104 (4 May 2004) provides assistance as to whether jurisdictional error has occurred. In that case the appellant alleged that the RRT had: failed to deal with, and ignored,…

Legislation cited in this decision · 1

Migration Act 1958 (Cth)
91R 2 mentions (from Para 1)