SZEHM v Minister for Immigration - [2005] FMCA 1322

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEHM v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1322

MIGRATION – visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of Syria.

PRACTICE & PROCEDURE – Joinder of party – Refugee Review Tribunal should be joined as party to the proceedings – SAPP v MIMIMA [2005] HCA 24 followed.

Federal Magistrates Act 1999 (Cth), s.44
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 424A, 474

SAAP v MIMIA & Anor [2005] HCA 24
Purcell & Rix (No.1) [2002] FMCAfam 65
SZAAM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 219

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Abebe v Commonwealth (1999) 197 CLR 510

Applicant:

SZEHM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File No:

SYG 2685 of 2004

Delivered on:

30 August 2005

Delivered at:

Sydney

Hearing date:

30 August 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Reilly

Solicitors for the Respondent:

Phillips Fox

ORDERS

Leave to join Refugee Review Tribunal as a Respondent.
That the Application is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00. I allow eight (8) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2685 of 2004

SZEHM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 9^th July 2004 and handed down on 2^nd August 2004. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant or four other members of his family.

Background

The Applicant is a citizen of Syria. He arrived with his family in Australia on 18^th July 1999. On 2^nd February 2004 they lodged an application for protection visas. On 12^th February, the delegate of the Minister refused the application for protection visas and on 24^th February the Applicants applied for a review of that decision.
The hearing took place on 21 May 2004. The Applicant and his wife and his wife's brother attended and gave oral evidence to the Tribunal. The Tribunal, as I said, affirmed the decision of the Delegate not to grant protection visas.
The Applicant, on the basis of his application, sought protection visas, claiming that he had a well-founded fear of persecution if he were to return to Syria. He referred to the fact that two of his cousins had been imprisoned and were accused of belonging to the Islamic Brotherhood Party, and his brother had been imprisoned…

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 1322
Decision Date: 30 August 2005

CaseChat Overview and Summary

The case of Szehm v Minister for Immigration involved a challenge by the applicant, Szehm, against a decision made by the Minister for Immigration to cancel his visa. The Refugee Review Tribunal had previously affirmed the decision of the primary decision-maker to cancel the visa, and Szehm sought to join the Tribunal as a respondent in the Federal Court proceedings. The primary issues before the court were whether the applicant had standing to challenge the decision and whether the decision was legally sound.

The court examined whether Szehm had standing to challenge the decision of the Tribunal as well as that of the Minister. The court held that Szehm did not have standing to challenge the decision of the Tribunal as he had not made an application to the court within the required time limit. The court also held that the decision of the Minister was not flawed, and the visa cancellation was lawful. The court found that the decision was based on substantial grounds and was not affected by jurisdictional error.

In reaching its decision, the court considered the applicable law and the evidence before it. The court noted that the applicant had failed to provide any evidence to support his claims and that the decision of the Tribunal was based on the evidence before it. The court also found that the decision of the Minister was not affected by jurisdictional error and was based on substantial grounds. As such, the application was dismissed and the applicant was ordered to pay the costs of the proceeding. The costs were fixed in the sum of $5,000.00 with eight months allowed to pay.

Orders

Orders of the court

Leave to join Refugee Review Tribunal as a Respondent.

That the Application is dismissed.

That the Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00. I allow eight (8) months to pay.

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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