SZDEM v Minister for Immigration - [2006] FMCA 763

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDEM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 763

MIGRATION – Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426, 483A

Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v SZGLB (2004) 207 ALR 12
NAAH v Minister for Immigration [2002] FCAFC 354
NARE v Minister for Immigration [2004] FCA 554
SAAP v Minister for Immigration [2005] HCA 24
SZDFO v Minister for Immigration [2004] FCA 1192
WAEE v Minister for Immigration [2003] FCAFC 184

First Applicant:

SZDEM

Second Applicant:

SZDEN

Third Applicant:

SZDEO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2403 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

12 April 2006

Delivered at:

Sydney

Delivered on:

2 June 2006

REPRESENTATION

Advocate for the Applicants:

The applicants appeared in person with the assistance of a Hindi interpreter

Counsel for the Respondents:

Mr G Kennett

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2403 of 2005

SZDEM

First Applicant

SZDEN

Second Applicant

SZDEO

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court of Australia on 29 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 19 February 2004 and handed down on 11 March 2004, affirming a decision of the delegate of the first respondent made on 26 August 2003, refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZDEM” (applicant husband), “SZDEN” (applicant wife) and “SZDEO” (applicant daughter).
The applicants have not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
The first respondent’s solicitors filed an affidavit of Laura Gazi, affirmed on 16 February 2006 (“affidavit of Ms Gazi”).

Background

The Tribunal decision of Margaret O’Brien, reference N03/47399 contains the following background information.…

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 763
Decision Date: 2 June 2006

CaseChat Overview and Summary

In the Federal Court of Australia, the case of SZDEM v Minister for Immigration involved applicants seeking to challenge the decision of the Minister for Immigration to refuse their application for a protection visa. The applicants, SZDEM, sought judicial review of the Minister's decision on the grounds that it was not legally sound and that the decision-making process was flawed. The Minister argued that the applicants did not qualify for a protection visa under the relevant legislation.

The court had to determine whether the Minister's decision was legally sound and whether it was open to the Minister to refuse the applicants' visa application. Specifically, the court examined whether the Minister's decision was based on a proper application of the relevant legislative provisions and whether the Minister had considered all relevant material before making the decision. The applicants argued that the Minister had failed to consider relevant information and that the decision was therefore flawed.

The court found that the Minister's decision was legally sound and that the decision-making process was proper. The court held that the Minister had considered all relevant material before making the decision and that the decision was based on a proper application of the relevant legislative provisions. The court found that the applicants had not established that the Minister's decision was flawed or that there were any errors in the decision-making process. Accordingly, the court dismissed the applicants' application for judicial review. The court ordered that the Refugee Review Tribunal be joined as the second respondent and that the applicants pay the Minister's costs and disbursements.

Orders

Orders of the court

The Refugee Review Tribunal is joined as the second respondent.

The application is dismissed.

The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to this application.

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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