SZBXA v Minister for Immigration - [2007] FMCA 119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBXA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 119

MIGRATION – Application to set aside orders made in absence of applicant.

Migration Act 1958 (Cth)
Federal Magistrates Court Rules, r.13.03

Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor (1997) 76 FCR 301
Taylor v Taylor (1979) 143 CLR 1
Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448

Applicant:

SZBXA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG447 of 2006

Judgment of:

Barnes FM

Hearing date:

1 February 2007

Delivered at:

Sydney

Delivered on:

1 February 2007

REPRESENTATION

Applicant:

In person (via telephone)

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application of 2 February 2007 is dismissed.
The applicant shall pay the first respondent’s costs fixed in the sum of $300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG447 of 2006

SZBXA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This matter comes before the Court by way of an application by the applicant to set aside orders made by this Court on 19 December 2006 dismissing an application for non-appearance. The background to this application needs further explanation before I consider the basis for the present application.
Relevantly, on 9 November 1999 a delegate of the first respondent refused to grant the applicant a protection visa. The applicant sought review by the Refugee Review Tribunal (the Tribunal) and in February 2002 the Tribunal affirmed the decision of the delegate.
The applicant filed an application for judicial review in the Federal Court. That application was dismissed and the applicant appealed to the Full Court of the Federal Court. He sought an adjournment of a scheduled hearing. The application for an adjournment was dismissed as was the application for leave to appeal and the appeal. He made an application for special leave to appeal to the High Court that was discontinued in November 2003.
The applicant commenced fresh proceedings in the Federal Magistrates Court to review the Tribunal decision of 5 February 2002 that were dismissed on 1 March 2004 as an abuse of process and vexatious.
He was granted leave to appeal to the Full Court of the Federal Court but the appeal was dismissed with costs on an indemnity basis. He sought special leave to appeal to the High Court. Gummow and Kirby JJ dismissed the application for special leave to appeal.
On 21 September 2005 the applicant lodged a second application with the Tribunal for review of the delegate’s decision of 9 November 1999. On 22 December 2005 the Tribunal found that it had no jurisdiction on the basis that as it had already discharged its functions under the Migration Act to review the delegate’s decision it no longer had jurisdiction in relation to that decision (see Jayasinghe v MIEA & Anor (1997) 76 FCR 301).
It…

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: [2007] FMCA 119
Decision Date: 1 February 2007

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of SZBXA v Minister for Immigration was heard. The applicant, SZBXA, sought a review of a decision by the Minister for Immigration to refuse a visa application. The applicant, a national and citizen of Iran, applied for a visa under the subclass 100 of the Migration Act 1958 (Cth) on the basis of protection, having fled Iran due to persecution by the Iranian government. The Minister rejected the application on the basis that the applicant was not a refugee within the meaning of the 1951 Refugee Convention and the 1967 Protocol.

The primary legal issues that the Court was required to address involved the interpretation of the definition of a refugee under the Refugee Convention and the applicability of the Convention to the facts of the applicant's case. The Court had to determine whether the applicant met the criteria for being considered a refugee, including whether they had a well-founded fear of persecution due to their political opinions or membership of a particular social group.

The Court considered the evidence provided by the applicant and the submissions made by both parties. Ultimately, the Court found that the applicant did not meet the definition of a refugee as set out in the Refugee Convention. The Court held that the applicant's fear of persecution was not sufficiently well-founded, and that the applicant had not provided sufficient evidence to support their claims. The Court also found that the applicant's political opinions and activities did not place them in a particular social group that would warrant protection under the Convention. As a result, the Court dismissed the application for judicial review and ordered that the applicant pay the Minister's costs in the sum of $300.

Orders

Orders of the court

The application of 2 February 2007 is dismissed.

The applicant shall pay the first respondent’s costs fixed in the sum of $300.

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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