SZCAL v MIAC

Case [2008] FMCA 330


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCAL & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 330
MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – merits review not the function of judicial review – procedural fairness – whether persecution involves ‘systematic and discriminatory conduct’ pursuant to s.91R(1)(c) – whether ‘international standards’ of state protection apply – whether ‘serious harm’ pursuant to s.91R(2)(a) – whether country information misapplied – bias – onus of proof – benefit of the doubt – whether proper consideration of claims – whether definition of ‘refugee’ misapplied.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424A, 425, 474, 476

SZHMN v Minister for Immigration & Anor [2008] FMCA 331
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61
SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

SBBS v Minister for Immigration & Migration & Indigenous Affairs (2002) 194 ALR 749
Attorney General (NSW) v Quin (1990) 170 CLR 1
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Minister for Immigration & Citizenship v SZCWF [2007] FCAFC 155
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
SZDWR v Minister for Migration & Indigenous Affairs [2006] FCAFC 36
SZGHC & Anor v Minister for Immigration & Citizenship [2007] FMCA 570
S1573 of 2003 v Minister for Immigration [2005] FMCA 47
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC)
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425

First Applicant: SZCAL
Second Applicant: SZCAM
Third Applicant: SZCAN
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1952 of 2007
Judgment of:

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AGLC
SZCAL v MIAC [2008] FMCA 330
Case
[2008] FMCA 330
Decision Date

CaseChat Overview and Summary

The applicants, SZCAL and SZCAM, sought judicial review of a decision made by the Tribunal in relation to their refugee status. The Federal Court of Australia heard the matter. The applicants argued that the Tribunal had erred in its decision that they were not refugees and that the Tribunal had been unfair, denying them natural justice. The Court was required to determine whether the Tribunal's decision was legally sound and if it had adhered to the principles of natural justice.

The Court examined the grounds of review presented by the applicants. It noted that the applicants had not particularised how they had been denied natural justice, and the Court found that the applicants had not established any sufficient evidential basis for their claim of unfairness. The Court also highlighted that the applicants and their daughter were not entitled to common law procedural fairness, as the Tribunal must observe the statutory expression of natural justice in accordance with the Migration Act. The Court found that the Tribunal's decision was legally sound and that the applicants had not provided sufficient evidence to overturn the Tribunal's decision.

The Court dismissed the application, stating that the Tribunal's decision was correct, and no errors were found in the Tribunal's process or outcome. The applicants were ordered to pay the First Respondent's costs in the amount of $6000, to be paid within five months of the date of the orders.

This decision underscores the importance of providing particularised evidence when claiming procedural unfairness and the limitations of judicial review in refugee status cases. It also highlights the necessity for applicants to adhere to the statutory expression of natural justice as outlined in the Migration Act.

Orders

Orders of the court

1.

The application filed on 25 June 2007 and the amended applications filed on 9 November 2007 and 14 November 2007 are dismissed.

2.

The Applicant Father, SZCAL and the Applicant Mother, SZCAM pay the First Respondent’s costs fixed in the sum of $6000 payable within five (5) months of the date of these Orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court agreed to the applicant father's request that it hold a joint hearing with the applicant daughter’s application (as had been done before the Tribunal), given that the amended applications [and the original applications] filed in both sets of proceedings raised identical grounds of review. Likewise, the Court has handed down identical Reasons for decision (as did the Tribunal) in both sets of proceedings in regard to the grounds raised in the respective applications, amended applications, and the applicants’ and applicant daughter’s written submissions (see SZHMN v Minister for Immigration & Anor [2008] FMCA 331. The applicant father represented the applicants, as well as the applicant daughter, in the joint proceedings before the Court. The grounds of the application are:(1)The Tribunal erred in deciding that the applicants are not a refugee.(2)The Tribunal was unfair and denied the applicants natural justice. This ground is not particularised. It seeks that the Court engage in merits review which is not the function of this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (and see The applicants’ and applicant daughter’s written submissions, Particular 6 below). Accordingly, Ground 1 of the application is rejected. The applicants and applicant daughter have not particularised how they say they have been denied natural justice in this case. Whilst the applicant father submitted to this Court that he objected at the Tribunal hearing to the member not being prepared to listen to his refugee claims, I note that the applicants and applicant daughter have not sought to put the transcript of the evidence of the Tribunal hearing or any other admissible evidence before this Court on the point. As stated by the Full Federal Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]:In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. I note that the applicants’ migration agent brought a complaint to the attention of the Principal member immediately after the Tribunal hearing, seeking that the member who conducted the hearing be disqualified alleging that she repeatedly asked the wrong questions, and annexing unsourced portions of the transcript of the Tribunal hearing (see CB 200-209). I further note that the Principal member of the Tribunal (after a senior member had listened to the tapes of the applicant’s and his daughter’s hearings), did not accept that there was any substance in the complaint and was of the view that the member had conducted the review “appropriately in the circumstances” (CB 210). In any event, the applicants and applicant daughter are not entitled to common law procedural fairness: s.422B of the Act. The Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8].

Ratio Decidendi

Legal Principle Established

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