FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDYI v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 971 |
| MIGRATION – RRT decision – Cambodian couple fearing political retribution – claims not accepted by Tribunal – no failure to consider relevant evidence – no error in failure to speculate. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.483A, Pt 8
Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152
WAEE v Minister for Immigration (2003) 75 ALD 630
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568
| Applicant: | SZDYI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1984 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 22 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr B M Zipser |
| Solicitors for the Applicant: | Eric Hong & Associates |
| Counsel for the First Respondent: | Miss R M Henderson |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1984 of 2004
| SZDYI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 May 2004 and handed down on 3 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.
The claims made by the present applicant to satisfy the Convention definition are not easily summarised. In the material before the Tribunal they emerged as a confused and contradictory series of narratives provided…
Continue reading SZDYI v Minister for Immigration
Sign in free to access the full text
- AGLC
- SZDYI v Minister for Immigration [2005] FMCA 971
- Case
- [2005] FMCA 971
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the Tribunal's decision was flawed by jurisdictional error, considering the complex and inconsistent claims presented by the applicant and her husband. The Court needed to assess if the Tribunal had correctly applied the law to the facts, particularly in evaluating the credibility of the applicant's evidence and its application to the Convention definition of a refugee. Counsel for the applicant did not argue that the Tribunal should have accepted the applicant's claims without question, but rather focused on certain aspects of the evidence that were accepted by the Tribunal and argued that the Tribunal failed to adequately address other evidence.
The Court found that the Tribunal had conducted a thorough and balanced assessment of the evidence, and had made a genuine attempt to determine the truth and apply the relevant legal standards. The Court was satisfied that the Tribunal had not erred in its assessment of the applicant's credibility or in its application of the law. The Court concluded that there was no jurisdictional error and dismissed the application. In addition, the Court ordered the applicant to pay the costs of the first respondent in the sum of $5,500.
Orders
Orders of the court
1.
Application dismissed.
2.
Applicant to pay the first respondent’s costs in the sum of $5,500.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 May 2004 and handed down on 3 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa. The claims made by the present applicant to satisfy the Convention definition are not easily summarised. In the material before the Tribunal they emerged as a confused and contradictory series of narratives provided by the applicant’s husband in support of his own protection visa application and as a witness in the present application, and by the applicant herself in documents and oral evidence. The Tribunal has identified their claims in 8 closely typed pages of its statement of reasons, which provide what I consider to be a careful description of all the material before it. In my opinion, it has then performed a balanced assessment of the evidence, and made a genuine attempt to distil the truth and to apply its findings of fact to relevant elements of the Convention definition of “refugee”. Counsel for the applicant did not attempt to summarise his client’s claims, and conceded at the forefront of his written submissions that “there appear to be inconsistencies in the applicant’s claims to the Department and Tribunal”. He made no submission that it was not open to the Tribunal to be dissatisfied with the general credibility of the applicant and to disbelieve key elements in her claims. However, as will appear below, there were some aspects of the applicant’s history which were accepted by the Tribunal, and counsel sought to build grounds of jurisdictional error upon these findings and upon an absence of discussion by the Tribunal in relation to two pieces of the evidence before the Tribunal. The factual background is that the applicant and her husband are nationals of Cambodia now aged in their 50’s. The husband arrived in Australia in May 1997. In his protection visa application made in May 1998, he claimed to fear persecution after receiving threats from the CPP party which had seized power in a coup in July 1997 after his departure from Cambodia. He said that, before his departure, he had been a member of the rival FUNCINPEC party and had campaigned for that party for elections which were due to be held later in 1997. Elections finally did take place in July 1998, in which the CPP failed to win enough seats to form government in its own right and formed a coalition government with the FUNCINPEC.