SZEKC v Minister for Immigration - [2005] FMCA 758

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEKC v MINISTER FOR IMMIGRATION

[2005] FMCA 758

MIGRATION – RRT decision – Indian claiming persecution for Christian conversions – disbelieved by Tribunal – procedural fairness concerning the applicant obtaining documents from India – no error found.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.422B, 483A, Pt 7 Div 4, Pt 8

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62
C v Minister for Immigration & Multicultural Affairs [1999] FCA 1663
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71

Applicant:

SZEKC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2829 of 2004

Judgment of:

Smith FM

Hearing date:

25 May 2005

Delivered at:

Sydney

Delivered on:

25 May 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S McNaughton

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2829 of 2004

SZEKC

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 Act 1958 (Cth) (“the Migration Act”), which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 July 2004 and handed down on 17 August 2004. The Tribunal affirmed a decision of the 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”. In a matter such as the present, the relevant jurisdiction 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, the limitations have the effect that I cannot set aside the Tribunal decision and send the case back unless I am satisfied that the Tribunal decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa or whether his claims should be believed.
In the present case, the applicant arrived in Australia on a visitor’s visa in April 2004 and applied for a protection visa on 27 April 2004 assisted by an agent, Mr Mollah. In his application he described his religion as “spiritual” and attached a statement headed “Details About the Happenings”, describing events which he said had happened to him in his country…

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 758
Decision Date: 25 May 2005

CaseChat Overview and Summary

The applicant in this case, Szekc, applied for a protection visa in Australia, which was subsequently refused by the Tribunal. The Minister for Immigration is the respondent. Szekc sought to challenge the Tribunal's decision under section 483A of the Migration Act 1958. The primary legal issue was whether the Tribunal's decision was affected by a jurisdictional error, as the Court's power to intervene is limited under section 39B of the Judiciary Act 1903 and Part 8 of the Migration Act. This limitation was confirmed in the case of Plaintiff S157/2002 v Commonwealth of Australia.

The Court examined the Tribunal's reasons and found no jurisdictional error. The Court could not substitute its own assessment of Szekc's refugee claims for that of the Tribunal. The Court noted that Szekc's claims, including his conversion to Christianity, the opposition from his family and community, and the threats and physical assault he experienced, were adequately considered by the Tribunal. However, the Court found that the Tribunal's decision was not affected by any jurisdictional error. Consequently, the application was dismissed, and Szekc was ordered to pay the respondent's costs amounting to $4500.

Orders

Orders of the court

Application dismissed.

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

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 27 July 2004 and handed down on 17 August 2004. The Tribunal affirmed a decision of the 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”. In a matter such as the present, the relevant jurisdiction 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, the limitations have the effect that I cannot set aside the Tribunal decision and send the case back unless I am satisfied that the Tribunal decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa or whether his claims should be believed. In the present case, the applicant arrived in Australia on a visitor’s visa in April 2004 and applied for a protection visa on 27 April 2004 assisted by an agent, Mr Mollah. In his application he described his religion as “spiritual” and attached a statement headed “Details About the Happenings”, describing events which he said had happened to him in his country of nationality, India, in a period leading up to his leaving that country in 2002 when he went to Kenya. The Tribunal provided in its reasons what is, for present purposes, a sufficient summary of his claims: The applicant claims that: ·He was born into a Hindu family. ·His parents do not have much education. ·His mother was born into a Christian family, but lived her life as a Hindu after she married his father. ·He has been interested in Christianity since he was a child. He was influenced by his maternal relatives and used to read Christian books. ·His father opposed his interest in Christianity and used to beat him and tear up his books. ·As an adult he met Christians who were engaged in social welfare activities. He joined in with them. ·When they moved on he started his own activities. He used to hold meetings in places such as parks and would talk to people about Christianity. ·His father was very angry with him and expelled him from the family home when he found out about his activities in this regard. Some Hindu families had complained to his father that he was trying to convert their relatives to Christianity. ·Hindu people were also very angry with him and decided to teach him a lesson. They used to harass, abuse and threaten him. On 20 August 2000 a group of ten to twelve people physically assaulted and injured him. ·He reported them to the police, but no action was taken and the people continued to threaten him. ·He lost the support of his family and lost his job. ·Some of his friends and well‑wishers advised him to leave India to save his life. After six or seven months he was able to start working, but after some time he found out that his enemies knew that he was in Kenya. They could have hired thugs to kill him at any time.