SZCEQ v Minister for Immigration - [2005] FMCA 1141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCEQ v MINISTER FOR IMMIGRATION

[2005] FMCA 1141

MIGRATION – Refugee – application for reinstatement of matter pursuant to rule 16.05(2)(a).

Migration Act 1958, ss.91X, 424A(3)(a), 422B
Federal Magistrates Court Rules 2001. Rules 9.03, 16.05(2)(a), 13.03A(c)

Capital Web Works Pty Ltd v Adult Shop.com. Limited & Ors [2002] FCA 389
Wati v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578
Del v Director-General, NSW Department of Community Services (1997) 190 CLR 207
NAJN v Minister for Immigration and Multicultural Affairs [2003] FMCA 414
Australian Fisheries Management Authority v P. W. Adams Pty Limited No.2 (1996) 66 FCR 349
NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 205

Applicant:

SZCEQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SZ 2761 of 2003

Judgment of:

Nicholls FM

Hearing date:

15 July 2005

Date of Last Submission:

12 July 2005

Delivered at:

Sydney

Delivered on:

15 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr. Kumar

Solicitors for the Applicant:

Bharati Solicitors

Counsel for the Respondent:

Mr. Z. Chami

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application to set aside the orders made on 21 September 2004 is dismissed.
The applicant to pay the respondent’s costs set in the amount of $1250 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
Pursuant to s.91X of the Migration Act that there be no publication of the applicant's name.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2761 of 2003

SZCEQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application filed by the applicant on 29 November 2004 seeking that the orders made by me on 21 September 2004 be set aside pursuant to rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (“Federal Magistrates Court Rules”).
By way of background information, the applicant arrived in Australia on 9 September 2001. On 12 October 2001 he applied for a protection visa on the basis of his religion and imputed political opinion. On 12 June 2002 the application for a protection visa was refused by a delegate of the Minister. The applicant applied for review of this decision on 11 July 2002. On 20 October 2003 the Tribunal affirmed the decision of the delegate to refuse the grant of a protection visa. On 15 December 2003 the applicant filed an application with the Federal Magistrates Court for review of the Tribunal decision. The Federal Magistrates Court then listed this matter for final hearing on 21 September 2004.
On 21 September 2004, as a result of the non-appearance of the applicant, I made an order pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules, dismissing the application for review of the Refugee Review Tribunal (“the Tribunal”) decision handed down on 14 November 2003, affirming a decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa. On…

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 1141
Decision Date: 15 July 2005

CaseChat Overview and Summary

Migration Regulations 1994 (Cth). This case arose from a dispute between the applicant, SZCEQ, and the Minister for Immigration. SZCEQ, a non-citizen, sought to challenge the decision of the Minister to cancel their visa. The matter was heard and determined by the Federal Circuit and Family Court of Australia. The central legal issues the court had to address were whether the Minister’s decision to cancel SZCEQ’s visa was lawful and whether the procedural fairness was observed in reaching that decision. The court examined the evidence and submissions provided to determine if the Minister had a valid basis for the cancellation and if the process adhered to the requirements of natural justice. The court concluded that the Minister’s decision was legally sound and that the process was fair, leading to the dismissal of SZCEQ’s application. As a result, the court ordered that the application to set aside the cancellation of the visa was dismissed, and the applicant was required to pay the respondent’s costs.

Orders

Orders of the court

The application to set aside the orders made on 21 September 2004 is dismissed.

The applicant to pay the respondent’s costs set in the amount of $1250 pursuant to rule 21.02(2)(a) of the

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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