SZDIL v Minister for Immigration - [2006] FMCA 431

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDIL & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 431

MIGRATION – RRT decision – reference to delay in making visa application – source of information as to date of application – whether a part of the reason for affirming the delegate’s decision – failure to serve invitation under s.424A(1) – no discretionary reason to refuse relief – matter remitted.

Acts Interpretation Act 1901 (Cth) s.8
Federal Magistrates Court Rule 13.10(c)
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s. 418(3), 424A, 424A(1), 424A(1)(a), 424A(3), 424A(3)(b), 427, 433, 483A
Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41

Migration Legislation Amendment Act (No.1) 1998 (Cth) Sch 3 cl.20

Applicants:

SZDIL, SZDIM, & SZDIN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1128 of 2004

Judgment of:

Smith FM

Hearing date:

30 March 2006

Delivered at:

Sydney

Delivered on:

12 April 2006

REPRESENTATION

Counsel for the Applicants:

Mr N Dobbie

Solicitors for the Applicants:

Parish Patience Immigration

Counsel for the First Respondent:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 17 March 2004 in matter N02/44906.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 5 June 1997.
The first respondent must pay the applicants’ costs in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1128 of 2004

SZDIL, SZDIM, & SZDIN

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 16 April 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 February 2004 and handed down on

17 March 2004. The Tribunal affirmed a decision of a delegate made on 5 June 1997 which refused to grant protection visas…

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 431
Decision Date: 12 April 2006

CaseChat Overview and Summary

The matter of SZDIL v Minister for Immigration concerned the refusal of the applicant's application for a protection visa, which was reviewed by the Refugee Review Tribunal. The applicant sought judicial review of the Tribunal's decision, arguing that it was flawed due to the Tribunal's reliance on the applicant's delay in lodging the application. The primary legal issue before the court was whether the Tribunal constructively failed to exercise its jurisdiction by not adequately addressing the relevance of the delay in the visa application and the applicant's understanding of its significance. This involved an examination of whether the Tribunal complied with the statutory requirement to give particulars of the date of the visa application and to ensure the applicant understood its relevance, as well as to invite the applicant to comment on it.

The court found that the Tribunal did not constructively exercise its jurisdiction under the Act by failing to provide the applicant with written particulars of the date when the protection visa application was lodged, and by not ensuring the applicant understood the relevance of this date to the Tribunal's decision. Furthermore, the Tribunal did not invite the applicant to comment on this matter. The court held that these omissions amounted to a failure to comply with section 424A of the Act. Consequently, the court quashed the Tribunal's decision and ordered a redetermination of the application for review. Additionally, the Minister was required to pay the applicant's costs of $5,000.

Orders

Orders of the court

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 17 March 2004 in matter N02/44906.

A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 5 June 1997.

The first respondent must pay the applicants’ costs in the amount of $5,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

No issue arises in relation to the above reasoning. The Tribunal’s reasoning in relation to the political claims then continued:The Tribunal does not accept that the applicant was in hiding in Indonesia that the army were looking for him during this time. It follows that the Tribunal does not accept that when the applicant returned to Indonesia in January 1995 he was warned by the manager of the company that the army were looking for him. The Tribunal finds the fact that the applicant returned to Indonesia in January 1995 to go back to work, complete unfinished business and return the company car further indicates to the Tribunal that the applicant was of no interest to the authorities when he left Indonesia. The applicant returned to Australia in 1995. He did not apply for a protection visa until April 1997. The Tribunal finds the applicant’s delay in applying for a protection visa further indicates to the Tribunal that he did not have a subjective fear of being of being persecuted when he left Indonesia. The independent information before the Tribunal indicates that there have been significant changes in Indonesia since the applicant left Indonesia in March 1995. President Suharto resigned from the Presidency on May 21, 1998. After the resignation of President Suharto President B.J. Habibie took the reigns of power. In October 1999 Abdurrahman Wahid and Megawati Sukarnoputri were elected to the positions of President and Vice-President respectively. On 23 July 2001 Megawati Soekarnoputri was sworn in as president. Megawati Soekarnoputri is the leader of PDI the party the applicant claims he was once a member of. Taking into account all of the evidence including the fact that the applicant was employed as a salesman in two companies prior to leaving Indonesia in December 1994, returned to Indonesia to work in January 1995, delayed applying for a protection visa and given the above independent information that the President of Indonesia is the leader of PDI the party the applicant claims he was once a member of the Tribunal is not satisfied that the applicant would be of any interest to the army or the authorities if he returns to Indonesia now or in the reasonably foreseeable future. (emphasis added) The sole ground of review relates to the highlighted references to delay in the above extract. It contends:The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act1. The Tribunal breached s.424A of the ActParticularsi.The Tribunal failed to give to the Applicant, in writing, particulars of the date when the Applicants lodged their protection visa application, which the Tribunal considered would be the reason, for affirming the decision under review; and failed to ensure, as far as is reasonably practicable, that the Applicants understood why it was relevant to the review; and failed to invite the Applicants to comment on it:(a) The Tribunal relied on the visa application date and the date when the First Applicant entered Australia to show delay, which then formed a part of the reasons why the Tribunal did not have a well-founded fear of persecution for reason of political opinion.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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