SZCVP v Minister for Immigration - [2006] FMCA 886

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVP v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 886

MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal affirming a decision not to grant a protection visa – applicant a citizen of Ukraine ethnicity claiming fear of persecution by criminal elements – whether the applicant is a member of a particular social group – no convention nexus – state protection – whether jurisdictional error made in respect of a finding of effective and adequate state protection against crime.

PRACTICE & PROCEDURE – Delay – whether delay so significant that relief should be refused on discretionary grounds – where application filed more than 15 months after decision handed down – whether reasonable explanation for delay.

PRACTICE & PROCEDURE – Submissions – further submission – where applicant filed a further submission after the hearing had concluded without leave – whether further submission should be considered.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 417, 474, 477
Migration Litigation Reform Act 2005 (Cth)

Applicant:

SZCVP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 544 of 2004

Judgment of:

Scarlett FM

Hearing date:

22 May 2006

Date of Last Submission:

2 June 2006

Delivered at:

Sydney

Delivered on:

19 June 2006

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Mr Reilly

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal is joined as Second Respondent to the application.
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in…

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: [2006] FMCA 886
Decision Date: 19 June 2006

CaseChat Overview and Summary

The applicant, SZCVP, a citizen of Ukraine, sought review of a decision by the Refugee Review Tribunal which affirmed the Minister for Immigration's decision not to grant a protection visa. The applicant claimed a fear of persecution by criminal elements in Ukraine, arguing membership of a particular social group and lack of convention nexus, state protection, and jurisdictional error regarding adequate state protection against crime. The case was heard in the Administrative Appeals Tribunal.

The legal issues before the court included whether the applicant was a member of a particular social group, whether there was a nexus between the persecution feared and a convention ground, and whether there was a jurisdictional error in finding effective and adequate state protection against crime. Additionally, the court considered whether the delay in filing the application for review was so significant as to warrant refusal of relief on discretionary grounds and whether a further submission filed after the hearing should be considered.

In dismissing the application, the court found that the applicant was not a member of a particular social group and that there was no nexus between the persecution feared and a convention ground. The court also found no jurisdictional error in the tribunal’s finding of effective and adequate state protection against crime. The delay in filing the application was deemed unreasonable, and the further submission filed after the hearing was not considered. The application was dismissed, and the applicant was ordered to pay the respondent's costs of $5,500.00, with two years allowed for payment.

Orders

Orders of the court

The Refugee Review Tribunal is joined as Second Respondent to the application.

The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

The application is dismissed.

The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00 and I allow two (2) years to pay.

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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