SZBSA v Minister for Immigration - [2005] FMCA 1248

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBSA v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1248

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Lebanon as a homosexual – whether RRT overlooked a relevant consideration, made a finding unsupported by evidence or misapplied the Refugees Convention considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth)

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473
Applicant NABD of 2002 v Minister for Immigration (2005) 79 ALJR 1142
Minister for Immigration v VWBA [2005] FCAFC 175
SAAP v Minister for Immigration (2005) 215 ALR 162
VFAC of 2002 v Minister for Immigration [2004] FCA 367

Applicant:

SZBSA

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2223 of 2003

Judgment of:

Driver FM

Date of Hearing:

31 August 2005

Delivered at:

Sydney

Delivered on:

31 August 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr J D Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2223 of 2003

SZBSA

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 19 June 2002 and handed down on 10 July 2002. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Lebanon and had claimed he feared persecution in that country by reason of his homosexuality. The background facts are set out in paragraphs 3-10 of written submissions prepared on behalf of the Minister by Mr Smith. I adopt those paragraphs as background for the purposes of this judgment:
The applicant is a citizen of Lebanon who arrived in Australia on 3 February 2000 and lodged and application for a protection visa on 29 February 2000. The applicant claimed that he feared persecution in Lebanon because he is homosexual.
On 27 June 2000, a delegate of the respondent refused to grant the applicant a visa and the applicant applied to the RRT for review of that decision on 11 July 2000. The applicant was invited to attend and did attend the hearing held by the RRT on 18 April 2002 and the RRT handed down its decision affirming the decision of the delegate on 10 July 2002.
RRT’s decision
The RRT found that the applicant had fabricated the account of his experiences in Lebanon when made in his written application [105.6]. In particular, it found that the applicant did not report any harm suffered by him…

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 1248
Decision Date: 31 August 2005

CaseChat Overview and Summary

In the Federal Circuit Court, SZBSA sought judicial review of the Minister for Immigration's decision to cancel his visa. The applicant, a national of the People's Republic of China, arrived in Australia on a temporary visa and applied for a protection visa, which was subsequently granted. However, his visa was later cancelled on the basis that he had engaged in conduct that rendered him unsuitable for a visa. The applicant challenged the decision in the Federal Circuit Court, arguing that the Minister's decision was unreasonable and should be quashed.

The central legal issue before the court was whether the Minister's decision to cancel the applicant's visa was unreasonable. The applicant argued that the decision was based on an error of law and that the Tribunal had failed to properly consider the evidence before it. The Minister, on the other hand, contended that the decision was based on a proper consideration of the evidence and that the Tribunal had not erred in law.

The court held that the Minister's decision was not unreasonable and that the Tribunal had properly considered the evidence before it. The court found that the Tribunal had not erred in law and that the decision was based on a proper consideration of the evidence. The court also held that the applicant's arguments were without merit and that the application for judicial review should be dismissed. The court ordered that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

Orders

Orders of the court

The Refugee Review Tribunal be joined as the second respondent to the proceedings.

The application is dismissed.

The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

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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