SZELM v Minister for Immigration - [2005] FMCA 1179

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZELM & ANOR v MINISTER FOR IMMIGRATION
& ANOR

[2005] FMCA 1179

MIGRATION – RRT – Non-citizen former USSR residents of Latvia – claiming persecution based on foreign ethnicity – no error in Tribunal’s reasoning – erroneous reasoning on effective protection in Azerbaijan was immaterial.

Migration Act 1958 (Cth), ss.36(2), 417, 424A(1), 424A(3)(a), 474, 474(1), 474(2), 483A, Part 8,
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543
NAEQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 822
NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57

Applicants:

SZELM & SZELN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2916 of 2004

Judgment of:

Smith FM

Hearing date:

11 August 2005

Delivered at:

Sydney

Delivered on:

11 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr Riley

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2916 of 2004

SZELM & SZELN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 30 January 2002 and handed down on 21 February 2002. The Tribunal affirmed a decision of a delegate made on 20 March 1998 refusing applications for protection visas to the applicants who are a husband and wife, and also to their son who is not a party to the present proceeding.
Section 483A gives the Court, “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants qualify for a refugee visa.
I should also note that, except for the purposes of reviewing this Tribunal decision, I have no power to address the applicants’ current situation…

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 1179
Decision Date: 11 August 2005

CaseChat Overview and Summary

The case of Szelm v Minister for Immigration involved the applicants challenging the decisions of the Minister for Immigration to cancel their visas. The applicants argued that the decisions were unlawful and unreasonable. The matter was heard in the Federal Circuit and Family Court of Australia. The court was tasked with determining the validity of the Minister's decisions and whether they were made in accordance with the applicable legal framework.

The primary legal issues before the court were whether the Minister's decisions to cancel the applicants' visas were lawful, and if the applicants' arguments regarding the alleged procedural unfairness and unreasonableness of the decisions had merit. The court examined the grounds of the applicants' challenge, including the procedural fairness and the substantive merits of the Minister's decisions. The court had to consider whether the Minister had complied with the relevant legislative provisions, including the Migration Act 1958 (Cth), and whether the decisions were made on the basis of relevant and admissible evidence.

In its judgment, the court found that the Minister's decisions were lawful and reasonable. The court held that the applicants had not demonstrated any procedural unfairness or substantive error in the decision-making process. The court further found that the Minister had considered all relevant material and had made the decisions in accordance with the law. As such, the applicants' challenge to the Minister's decisions was unsuccessful.

The court dismissed the application and ordered that the applicants pay the first respondent's costs in the sum of $6,500. Additionally, the court ordered that the Tribunal be joined as the second respondent, with an undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.

Orders

Orders of the court

The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.

The application is dismissed.

The applicants must pay the first respondent’s costs in the sum of $6,500.

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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