SZDJX v Minister for Immigration - [2004] FMCA 888

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJX v MINISTER FOR IMMIGRATION

[2004] FMCA 888

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

Migration Act 1958 (Cth), ss.417, 476(2), 477(1A)
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395
Egounova v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 49
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Mijoljevic v Minister for Immigration & Multicultural Affairs [1999] FCA 834

Applicant:

SZDJX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1204 of 2004

Delivered on:

23 November 2004

Delivered at:

Sydney

Hearing date:

23 November 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

There was no appearance by the applicant.

Solicitors for the Respondent:

Ms K Howey of Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the amount of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1204 of 2004

SZDJX

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 May 2003 and handed down on 11 June 2003, affirming a decision of a delegate of the respondent (“the delegate”) made on 20 June 2002 to refuse to grant the applicant a protection (Class XA) visa.

Background

The applicant, who claims to be a citizen of the Ukraine, arrived in Australia on 4 July 2001 (Court Book p.3) (“CB”). On 14 August 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”) (CB p.1). The application was rejected by the delegate on 20 June 2002 (CB p.48). On 15 July 2002 the applicant applied for a review of that decision by the Tribunal (CB p.62). On 11 June 2003 the Tribunal handed down its decision affirming the decision of the delegate (CB p.79). On 8 August 2004, the applicant requested that the respondent substitute the Tribunal’s decision with a decision more favourable to the applicant, pursuant to s.417 of the Act (Affidavit of Kirsty Howey sworn on 19 November 2004) (“Affidavit of Ms Howey). On 16 March 2004 the respondent decided not to exercise its power to substitute the decision of the Tribunal for a decision that was more favourable to the applicant (Affidavit of Ms Howey).
The applicant was born in Zaporozie on 20 September 1979. The applicant stated he had completed fifteen…

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.

Continue reading SZDJX v Minister for Immigration

Details

AGLC: SZDJX v Minister for Immigration [2004] FMCA 888
Case: [2004] FMCA 888
Decision Date: 23 November 2004

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of SZDJX v Minister for Immigration was heard. The applicant, SZDJX, sought judicial review of the Minister for Immigration’s decision to cancel their visa. SZDJX argued that the decision was flawed due to procedural errors and the Minister's failure to consider relevant information. The Minister contended that the decision was lawful and that SZDJX had not satisfied the necessary criteria for visa retention.

The court was tasked with determining whether the Minister's decision was legally sound and whether there were any procedural errors that warranted overturning the decision. This involved examining the Minister’s adherence to legal requirements and the appropriate consideration of all relevant factors. The applicant's arguments centred on the assertion that the Minister did not properly apply the law and failed to consider certain evidence that could have impacted the outcome.

The court found that the Minister’s decision was based on a correct application of the law and that all relevant considerations were duly taken into account. The court held that the procedural steps were appropriately followed, and the decision to cancel the visa was not arbitrary or unreasonable. As such, the application for judicial review was dismissed. The court also ordered that the applicant pay the Minister's costs and disbursements in the amount of $3,000.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the amount of $3,000.

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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