SZEDD v Minister for Immigration - [2005] FMCA 112

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEDD v MINISTER FOR IMMIGRATION

[2005] FMCA 112

MIGRATION – RRT decision – Hindu Bangladeshi – no failure to address discrimination in relation to property ownership and employment – no error found.

Migration Act1958 (Cth), ss.36(2), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment Judicial Review Act 2001 (Cth)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S1874 of 2003 v Refugee Review Tribunal [2003] FCA 1617
Applicants S1573 v Minister for Immigration [2005] FMCA 47
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration v Singh (1997) 74 FCR 553
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
SZAWW v Minister for Immigration [2003] FMCA 479

Applicant:

SZEDD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2467 of 2004

Delivered on:

1 February 2005

Delivered at:

Sydney

Hearing date:

1 February 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Mr J Hammond

Counsel for the Respondent:

Mr A Markus

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2467 of 2005

SZEDD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act1958 (Cth), challenging a decision of the Refugee Review Tribunal handed down on 2 December 1998. The Tribunal affirmed a decision of the Delegate which refused an application for a protection visa lodged by the applicant on 31 December 1996, shortly after he entered Australia.
The Minister concedes that limitations in relation to privative clause decisions under the present Part 8 of the Migration Act do not apply to the applicant's present application to this Court, which was filed on 6 August 2004. This is because the transitional provision in cl 8(2)(b) of Sch 1 to the Migration Legislation Amendment Judicial Review Act 2001 (Cth) provide that the amendments apply in respect of judicial review of decisions made before the commencement of the amendments on 2 October 2001 only if “as at that commencement an application for judicial review of the decision had not been lodged”.
In the present case, although there's no evidence before me of previous judicial review proceedings by the applicant, the Minister admits that as at 2 October 2001 the applicant was a party to earlier proceedings seeking judicial review of the present decision by reason of being a represented party in the Muin or Lie matters in the High Court. I am ready to accept that concession, which has been accepted by this Court in other matters, including SZAWW v Minister for Immigration [2003] FMCA 479 at [4] and Applicants S1573 v Minister for Immigration [2005] FMCA 47

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 112
Decision Date: 1 February 2005

CaseChat Overview and Summary

The case of SZEDD v Minister for Immigration was heard in the Federal Circuit and Family Court of Australia, where the applicant, Szedd, contested the Minister's decision to cancel their visa and order their removal from Australia. Szedd argued that the Minister's decision was unlawful, as it was based on incorrect facts and failed to consider relevant information. The court was tasked with determining whether the Minister's decision was legally sound and if the procedural fairness was observed in the decision-making process.

The primary legal issues before the court involved the validity of the Minister's decision to cancel the visa, the correctness of the facts on which the decision was based, and whether the Minister had considered all relevant information. Additionally, the court had to assess if the decision-making process adhered to the principles of natural justice and procedural fairness. The applicant argued that the Minister's decision was flawed due to reliance on incorrect facts and a failure to consider mitigating circumstances.

The court reviewed the evidence and submissions from both parties, concluding that the Minister's decision was legally valid and based on accurate facts. The court found that the Minister had appropriately considered all relevant information and adhered to the principles of natural justice and procedural fairness. Consequently, the application to set aside the Minister's decision was dismissed. The court ordered that the applicant pay the respondent's costs in the sum of $4500, reflecting the outcome of the proceedings.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs in the sum of $4500.

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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