SZBMF v Minister for Immigration - [2005] FMCA 925

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBMF v MINISTER FOR IMMIGRATION

[2005] FMCA 925

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and political persecution in India – application to RRT made out of time – RRT found it had no jurisdiction – no reviewable error found – judicial review application dismissed.

Migration Act 1958 (Cth), ss.65, 66, 412, 424A, 425, 494B, 494C, 494D
Migration Regulations

Fernandez v Minister for Immigration [2000] FCA 324
Minister for Immigration v Singh [2000] FCA 377
MZNAX v Minister for Immigration [2004] FCA 1126
MZNAW v Minister for Immigration [2004] FMCA 213
SZCTH v Minister for Immigration (No 1) [2004] FMCA 211
SZCTH v Minister for Immigration (No 2) [2004] FMCA 284

Applicant:

SZBMF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1948 of 2003

Judgment of:

Driver FM

Hearing date:

21 June 2005

Delivered at:

Sydney

Delivered on:

21 June 2005

REPRESENTATION

Counsel for the Applicant:

Mr A B Slattery

Solicitors for the Respondent:

Ms S Burnett
Clayton Utz

ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1948 of 2003

SZBMF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 4 September 2003. The RRT decided that it did not have jurisdiction to review the decision of the delegate sought to be reviewed before the RRT. The decision of the delegate was to refuse the applicant a protection visa. Relevant background facts are set out in the respondent's written submissions. I adopt as background paragraphs 1-7 of those written submissions:
The applicant seeks to have reviewed in this Court a decision of the RRT made on 4 September 2003 and handed down on 11 September 2003, determining that it had no power to consider the applicant's application for review of a decision of the respondent's delegate made on 27 February 2003 to refuse the applicant a protection visa.
The Applicant is a citizen on India. He arrived in Australia on 6 February 2003 and lodged an application for a protection (class XA) visa on 10 February 2003. He claimed to fear persecution by reason of his religion and political opinion.
The applicant claimed that as a Muslim he was deprived of basic rights. He claimed that if there was any religious problem in India the police arrested him and sent him to gaol and asked him to attend at the police station twice a week. The applicant also claimed to have been tortured by the "Q Branch Police", to have had false cases made against him and to have been…

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 925
Decision Date: 21 June 2005

CaseChat Overview and Summary

In the Federal Circuit Court, the case of SZBMF v Minister for Immigration was brought before the court. The applicant, SZBMF, sought a review of a decision by the Minister for Immigration, who refused to grant the applicant a visa. The applicant claimed that the decision was unlawful due to procedural unfairness and errors in the assessment of the application. The court was required to determine whether the decision was indeed unlawful and, if so, what remedy, if any, should be applied. The court found that the Minister had followed proper procedures in making the decision, and that there were no errors in the assessment. The court also found that the applicant had not demonstrated any substantial injustice caused by the decision. The court held that the application for judicial review should be dismissed, and ordered that the applicant pay the respondent's costs and disbursements. The court further ordered that the applicant's name not appear on the transcript of proceedings to protect their privacy.

Orders

Orders of the court

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

The application is dismissed.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

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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