SZDKR v Minister for Immigration - [2004] FMCA 738

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKR v MINISTER FOR IMMIGRATION

[2004] FMCA 738

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

Migration Act 1958 (Cth), ss.425, 425A(4), 426A, 426A(1), 441A, 441C, 474
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
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311

Applicant:

SZDKR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1235 of 2004

Delivered on:

29 October 2004

Delivered at:

Sydney

Hearing date:

27 October 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

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 an amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1235 of 2004

SZDKR

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”) handed down on 9 March 2004 affirming a decision of a delegate of the respondent made on 29 July 2003 to refuse to grant the applicant a protection visa.

Background

The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 10 July 2003. On 24 July 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (“the Act”). On 29 July 2003 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa (Court Book pp.33-43). On

2 September 2003 the applicant applied for a review of the delegate’s decision (Court Book pp.44-47).
The applicant claimed to fear persecution in China for reasons of religion. He claimed he was a devout Catholic and that he had practised his religion in underground churches and gatherings which were not sanctioned by the Chinese authorities (Court Book pp.31-32).
The application to the Tribunal seeking a review of the delegate’s decision was lodged on 2 September 2003. The applicant disputed the primary decision but did not provide any further material or evidence (Court Book pp.44-47).
On 9 January 2004 the Tribunal wrote to the applicant inviting him to attend a hearing scheduled on 4 March 2004. The Tribunal’s letter of invitation was posted to the applicant and his adviser. In accordance with s.425A(4) of the Act the letter included a statement to the effect of s.426A and…

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: [2004] FMCA 738
Decision Date: 29 October 2004

CaseChat Overview and Summary

The matter before the court involved SZDKR, the applicant, and the Minister for Immigration, the respondent. The applicant sought judicial review of the respondent's decision to refuse their application for a protection visa. The High Court of Australia heard the appeal from the Federal Court of Australia.

The central legal issues that the court needed to determine were whether the primary judge correctly applied the law in assessing the credibility of the applicant’s evidence and whether there was an error in the decision-making process that warranted overturning the Minister's decision. The court needed to examine whether the primary judge correctly interpreted the relevant statutory provisions and applicable case law, and whether the Minister’s decision was rationally based on the evidence presented.

In its judgment, the court held that the primary judge correctly exercised their discretion in assessing the applicant's credibility and did not identify any error in the decision-making process. The court found that the primary judge’s assessment of the evidence was thorough and that the decision was rationally based on the material before the court. The applicant's appeal was dismissed, and the court ordered that the applicant pay the Minister's costs and disbursements of the application, fixed in the amount of $4,000.

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 an amount of $4,000.

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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