SZDYM v Minister for Immigration - [2005] FMCA 988

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDYM v MINISTER FOR IMMIGRATION

[2005] FMCA 988

MIGRATION – Review of decision of Refugee Review Tribunal – Tongan – constitutionality of Migration Act – application patent nonsense – no error of law – privative clause decision – application dismissed.

Commonwealth of Australia Constitution
Migration Act 1958 (Cth)

Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151
Molisi v Minister for Immigration & Multicultural Affairs [2001] FCA 420
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 197

Applicant:

SZDYM

Respondent:

MINSTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1994 of 2004

Delivered on:

22 June 2005

Delivered at:

Sydney

Hearing date:

22 June 2005

Judgment of:

Mowbray FM

REPRESENTATION

Advocate for the Applicant:

In person

Counsel for the Respondent:

Mr Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental of the application fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1994 of 2004

SZDYM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 26 May 2004 and handed down on

16 June 2004.
I preface my reasons for decision by concurring wholeheartedly with what Mr Reilly, counsel for the respondent, said during the hearing about the significant harm done to Tongan applicants by a migration agent called Mr Fanua. The applicant before me suffers from the same misfortune. Mr Fanua’s hand appears to have been instrumental in drafting the application to this Court, which, for the reasons I will give in a moment, is fatally flawed. Moreover from a legal point of view, it is patent nonsense. Mr Fanua has not turned up in Court for the hearing, but as Mr Reilly has said, the effect of his influence rebounds on unfortunate Tongan applicants whose claims before the Court are inevitably dismissed.

Background

The applicant is a citizen of Tonga who arrived in Australia on 27 February 2003 on a visitor visa. On 11 March 2004 she applied for a protection visa. On 12 March 2004 a delegate of the Minister refused the application. On 2 April 2004 she lodged an application for review. She then attended a hearing on 26 May 2004. Later that day the Tribunal affirmed the decision of the Minster’s delegate and that decision of the Tribunal was handed down on 16 June 2004.

Claims before the Department and the Tribunal

The applicant claims that she is fearful of going back to Tonga because of her political opinion. She does not trust the police and some government officials. She says that the political system is controlled in Tonga by the king, who has absolute power. Although she says that she has…

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 988
Decision Date: 22 June 2005

CaseChat Overview and Summary

SZDYM, an applicant from Poland, sought judicial review of the Minister for Immigration's decision to cancel their visa due to character grounds. The matter was heard by the Federal Circuit Court of Australia. The applicant contested the validity of the Minister's decision, arguing that the decision was unreasonable and based on an error of law.

The central issue before the court was whether the Minister's decision was based on a lawful consideration of the applicant's character and whether the decision was proportionate to the statutory objectives. The applicant contended that the Minister had failed to consider relevant mitigating factors and had over-emphasised adverse factors. The court needed to determine whether the Minister's assessment was reasonable and if the decision was within the statutory framework.

The court found that the Minister's decision was made in accordance with the applicable legal principles and was not unreasonable. The court held that the Minister had properly considered the statutory objectives and the evidence before them. The court emphasised that the Minister's role was to assess the applicant's character based on the statutory criteria and the evidence provided. The applicant's arguments regarding the proportionality and consideration of mitigating factors did not sufficiently challenge the Minister's decision. The court concluded that the decision was lawful and did not contain any errors that would warrant judicial intervention. The application for judicial review was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

The application be dismissed.

The applicant pay the respondent’s costs and disbursements of and incidental of the application fixed in the sum of $5,000.

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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