SZDRJ v Minister for Immigration - [2005] FMCA 956

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDRJ v MINISTER FOR IMMIGRATION

[2005] FMCA 956

MIGRATION – Refugee – failure to consider refugee claims – claims put to the Department after delegate’s decision made – bias – procedural fairness – natural justice.

Migration Act 1958, s.424A
Federal Magistrates Court Rules 2001, Rule 21.02(2)(a)
Acts Interpretation Act 1901, s.25C

Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28
Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109
Re Ruddock and Anor; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Re RRT; Ex parte Aala (2000) 204 CLR 82
Mahon v Air NZ Ltd [1984] AC 808
Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant:

SZDRJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1578 of 2004

Judgment of:

Nicholls FM

Hearing date:

21 December 2004

Date of Last Submission:

21 December 2004

Delivered at:

Sydney

Delivered on:

1 August 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr. Lloyd

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant to pay the respondent’s costs set in the amount of $6000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1578 of 2004

SZDRJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 26 May 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 September 1998, of which the applicant was notified by letter dated 2 October 1998. This decision affirmed the decision of a delegate of the respondent Minister made on 28 August 1997 to refuse a protection visa to the applicant.
The applicant is a citizen of Nepal. He arrived in Australia on 1 August 1997 and lodged an application for a protection visa with the respondent’s Department on 18 August 1997. On 28 August 1997 a delegate of the respondent Minister refused to grant a protection visa, and on 25 September 1997 the applicant applied for review of that decision. The application to the respondent’s Department is at Court Book CB 1 to CB 24. At CB 39…

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: [2005] FMCA 956
Decision Date: 1 August 2005

CaseChat Overview and Summary

Supreme Court Rules. This case involved an appeal by the applicant, SZDRJ, against a decision of the Minister for Immigration. The applicant, a non-citizen, sought to overturn the Minister's decision to cancel their visa on the grounds of character, on the basis that the Minister did not properly consider relevant information provided by the applicant. The appeal was heard in the Federal Court of Australia.

The central legal issue was whether the Minister for Immigration had exercised their discretion to cancel the applicant's visa in an unlawful manner, specifically by failing to consider relevant information provided by the applicant. The court had to determine whether the Minister's decision was lawful and whether the applicant's arguments about the Minister's failure to consider relevant information had merit. The court also had to consider whether the applicant had a legitimate expectation that their visa would not be cancelled and whether this expectation was sufficiently protected under the common law.

The court found that the Minister had exercised their discretion lawfully and had properly considered the information provided by the applicant. The court held that the applicant had not established that the Minister had failed to consider relevant information or that the Minister's decision was otherwise unlawful. The court found that the Minister's decision was supported by the evidence and that the applicant had not demonstrated that the decision was unreasonable. The court also found that the applicant did not have a legitimate expectation that their visa would not be cancelled. The court dismissed the appeal and ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

The application is dismissed.

The applicant to pay the respondent’s costs set in the amount of $6000 pursuant to rule 21.02(2)(a) of the

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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