SZDFB v Minister for Immigration - [2006] FMCA 458

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDFB v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 458

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – relocation – common law procedural fairness.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), 5(1); 36(2); 65(1); 91R; 91S; 422B; 424A; 474; 483

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
SKFB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 142
ApplicantVEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72
Kioa v West (1985) 159 CLR 550

Applicant:

SZDFB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG979 of 2004

Judgment of:

Emmett FM

Hearing date:

21 March 2006

Date of Last Submission:

4 April 2006

Delivered at:

Sydney

Delivered on:

11 April 2006

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent:

Mr J. D. Smith

Solicitors for the Respondent:

Mr P. Reynolds, Clayton Utz

ORDERS

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $6000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG979 of 2004

SZDFB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 10 September 1997, to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicant.
The applicant is a 36 year old man who claims to be a citizen of Nepal and is of Buddhist faith (“the Applicant”).
The Applicant arrived in Australia on 16 November 1995.
On 14 December 1995, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution in Nepal by the Nepali Congress Party (“NCP”) by reason of his political affiliation with the Communist Party of Nepal – United Marxist Leninist (“CPN”).
On 9 April 1997, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 6 May 1997, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 29 August 1997, the Tribunal affirmed…

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 458
Decision Date: 11 April 2006

CaseChat Overview and Summary

The case of SZDFB v Minister for Immigration involved an application for leave to add a party and an appeal against the decision of the Minister for Immigration. The applicant sought to add the Refugee Review Tribunal as a second respondent. The Federal Court was tasked with deciding whether to grant the leave to add the second respondent and subsequently address the merits of the appeal against the Minister's decision.

The primary legal issue before the court was whether the applicant should be granted leave to add the Refugee Review Tribunal as a second respondent, and if so, whether the appeal against the Minister's decision should be upheld. The court needed to consider the procedural fairness of allowing the amendment to the parties and the merits of the applicant's case against the Minister's decision, which was based on the assessment of the applicant's refugee status.

The court held that the applicant should be granted leave to add the Refugee Review Tribunal as a second respondent. However, upon considering the merits of the appeal, the court found that the Minister's decision was sound and appropriately made. The court determined that the applicant had not demonstrated any error in the Minister's decision, and thus the appeal was dismissed. The court also ordered the applicant to pay the Minister's costs in the amount of $6000.

Orders

Orders of the court

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

That the Refugee Review Tribunal be joined as Second Respondent.

The application before this Court is dismissed.

That the applicant pay the First Respondent’s costs in an amount of $6000.

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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