SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs - [2006] FCA 59

FEDERAL COURT OF AUSTRALIA
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 59
MIGRATION - whether implausibility reasoning perverse – whether procedural fairness requires disclosure by Tribunal of provisional views on matters of assumption
Migration Act 1958 (Cth) ss 36(2), 91R(3)
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576
SZBEL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
NSD 379/2005
GRAHAM J
9 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 379 OF 2005

BETWEEN:

SZBEL

APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

9 FEBRUARY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        The appeal be dismissed.
2.        The Appellant pay the First Respondent’s costs.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 379 OF 2005

BETWEEN:

SZBEL

APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE:

9 FEBRUARY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This matter concerns an Iranian seaman who “jumped ship” on 7 April 2001 when the vessel on which he was serving was in Port Kembla. Since leaving his ship he has become baptized as a Christian whilst living in Australia. He contends that his Christian journey commenced before that and that his interest in Christianity which preceded his conversion from the Islamic faith provided a basis for his claim, since his arrival here, of refugee status.
His application for a Protection (Class XA) Visa was rejected by the Minister’s Delegate. His subsequent application for review of that decision was rejected by the Refugee Review Tribunal (“the Tribunal”) and his application for review of the Tribunal’s decision was dismissed in the Federal Magistrates Court of Australia on 23 February 2005.
The current appeal from the decision of the Federal Magistrate raises the question of whether the Tribunal committed reviewable error. The Respondent Minister submits that the Appellant is in truth seeking no more than a merits review and that no ground has been made out warranting the issue of constitutional writs.
The Appellant does not seek to rely on his conversion and baptism to justify his claimed refugee status, nor does he rely upon the reasons for his departure from Iran to justify that status. The Appellant simply relies on his reasons for jumping ship at Port Kembla.
He contends that his interest in Christianity, which predated his departure from Iran, had become known to some fellow seamen on his ship, that the Captain had become aware of that interest and that the Captain had…

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 SZBEL v Minister for Immigration and Multicultural and Indig...

Details

AGLC: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 59
Case: [2006] FCA 59
Decision Date: 9 FEBRUARY 2006

CaseChat Overview and Summary

The case of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs involved the Appellant, a national from an unnamed country, who was challenging a decision of the Tribunal to reject his application for a protection visa. The Appellant had arrived in Australia by boat and subsequently claimed asylum, stating that he had left his home country due to persecution based on political opinion. The Minister for Immigration and Multicultural and Indigenous Affairs was the respondent, and the Tribunal's decision was under review by the court.

The central legal issue before the court was whether the Tribunal had made a jurisdictional error in rejecting the Appellant's claim for a protection visa. Specifically, the Appellant argued that the Tribunal did not properly assess the credibility of his reasons for fleeing his home country and leaving by boat. The court had to determine if there was a procedural or evidential basis for the Tribunal's conclusion and whether it was open to the Tribunal to reject the Appellant's claim based on the evidence presented.

The court found that the Tribunal's rejection of the Appellant's claim was reasonable and within its jurisdiction. The court concluded that the Tribunal had thoroughly considered the Appellant's reasons for leaving his home country and had ample evidence to form its view on the credibility of his claims. The court found no procedural irregularity or evidential oversight in the Tribunal's decision-making process. As the Tribunal's decision was open on the material before it, the court dismissed the appeal.

The court made clear that it could not identify any jurisdictional error in the Tribunal's handling of the Appellant's case. Consequently, the appeal was dismissed, and the Appellant was ordered to pay the costs of the First Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs. This decision underscored the deference courts afford to the expertise of administrative tribunals in matters of refugee status and the high threshold for overturning such decisions on appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Appellant pay the First Respondent’s costs.

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

The Tribunal did not have to articulate the reasoning processes by which it came to the conclusion that it reached about the Appellant’s claimed reasons for jumping ship in this case. Its rejection of the Appellant’s claim was obviously open on the known material.CONCLUSION I am unable to discern any jurisdictional error on the part of the Tribunal along the lines advanced by the Appellant or at all. Accordingly, the appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NSD 379 OF 2005
BETWEEN:	SZBEL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE OF ORDER:	9 FEBRUARY 2006
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NSD 379 OF 2005
BETWEEN:	SZBEL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	9 FEBRUARY 2006
PLACE:	SYDNEY