SZEAD v Minister for Immigration - [2005] FMCA 1524

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEAD & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 1524

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

Migration Act 1958 (Cth), ss.91X, 483A
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192
NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554
NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354

Applicants:

SZEAD, SZEAE & SZEAF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2267 of 2004

Delivered on:

28 October 2005

Delivered at:

Sydney

Hearing date:

14 September 2005

Final submissions:

30 September 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicants:

Mr A Kumar

Solicitors for the Applicants:

Bharati Solicitors

Counsel for the Respondent:

Ms K Morgan

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The adult applicants are to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2267 of 2004

SZEAD, SZEAE & SZEAF

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on

13 August 1999 and handed down on 13 August 1999, affirming the decision of the delegate of the respondent (“the delegate”) made on

5 May 1997 to refuse to grant the applicants a protection visas. The applicants seek unstated relief against the decision of the Tribunal.

Background

The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Act and have been given the pseudonym “SZEAD”, “SZEAE” and “SZEAF”.
The applicant, his wife and his daughter, who are citizens of Sri Lanka, arrived in Australia on 11 May 1996. On 29 January 1997 the applicant lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp. 9-65) (“CB”). On the same day the applicant’s wife lodged her application and the daughter was included as a member of the family unit. On 5 May 1997 the delegate refused to grant protection visas (CB pp.66-74) and the applicants were notified of that decision on the same date. On 27 May 1997 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.76-79). On 18 February 1998 the Tribunal affirmed the decision of the delegate to refuse the grant of protection visas. That decision was appealed in the Federal…

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 1524
Decision Date: 28 October 2005

CaseChat Overview and Summary

In the case of Szead v Minister for Immigration, the applicants, a family of four, sought protection from deportation. The Federal Court was tasked with deciding whether the Minister for Immigration was justified in cancelling the family’s visas on the basis that they were not genuine travellers or students. The applicants argued that the decision was unreasonable, as they had provided evidence to support their claims.

The court examined whether the Minister had acted lawfully and reasonably in cancelling the visas. Key issues included whether there was sufficient evidence to support the Minister's decision, and if the decision-maker had considered all relevant material. The applicants contended that the decision was flawed as it failed to properly assess the credibility of their evidence and did not adequately consider the implications of their deportation on their children.

The court found that the decision was not unreasonable and was supported by the evidence. The decision-maker had appropriately assessed the evidence and applied the relevant legal principles. The court held that the Minister had not erred in concluding that the applicants were not genuine travellers or students, and therefore the visa cancellation was justified. The court dismissed the application and ordered the applicants to pay the respondent’s costs and disbursements.

Orders

Orders of the court

The application is dismissed.

The adult applicants are to pay the respondent’s costs and disbursements of and incidental to the application.

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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