SZENN v Minister for Immigration - [2005] FMCA 158

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZENN v MINISTER FOR IMMIGRATION

[2005] FMCA 158

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 Turkey – where a person is in immigration detention the respondent has an obligation to see that the person receives necessary medical treatment.

Migration Act 1958 (Cth), s. 477

Craig v South Australia (1995) 184 CLR 163
Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476

Applicant:

SZENN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3040 of 2004

Delivered on:

16 February 2005

Delivered at:

Sydney

Hearing date:

16 February 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In person (in immigration detention, by video link)

Counsel for the Respondent:

Ms Wong

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3040 of 2004

SZENN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I have considered the application for an adjournment. The Applicant says that he is not ready for this hearing because he needs a lawyer. He has been in detention since 15 September 2004. He does not seem to have taken any steps to obtain legal advice and I believe that there would be sufficient time to do so, even allowing for the fact that he is in detention.
The application for an adjournment is refused. The Application will proceed today.
I have considered the matters before me. The Applicant asks for a review of a decision of the Refugee Review Tribunal. That decision was handed down on 20 June 2003. The Refugee Review Tribunal affirmed the decision of the Minister not to grant a protection visa to the Applicant. He told the court today that, in any event, his visa has now expired. He has been in immigration detention since 15 September 2004. He lodged his application for a review in this court on 8 October 2004. He was already in detention at that stage.
The Applicant says that he did not lodge an application earlier because he was misled. He said he was misled by someone at the Department of Immigration. When he found out that his application before the Refugee Review Tribunal was unsuccessful he received a letter. He said he took that letter to the Department of Immigration. Someone there told him that the letter said he either had to pay $1000.00 or else he would have to leave the country within 28 days.
He paid the $1000.00 in a lump sum.
He said he asked about lodging an appeal. He said he was told by someone at the Department that a form would be sent to his home. No form was received.
He was…

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 158
Decision Date: 16 February 2005

CaseChat Overview and Summary

SZENN was the applicant in a case brought against the Minister for Immigration. The dispute centred on the validity of the Minister’s decision to cancel the applicant’s visa. The matter was heard in the Federal Court of Australia. The applicant argued that the Minister’s decision was flawed on the basis that it was based on false information and that the Minister had failed to provide procedural fairness.

The court had to determine whether the Minister’s decision to cancel the visa was legally sound and whether procedural fairness was observed. Specifically, the court needed to consider whether the Minister was provided with accurate information upon which to base the decision and whether the applicant was given an adequate opportunity to respond to the allegations against them.

In delivering its judgment, the court found that the Minister’s decision was based on accurate information and that procedural fairness was observed. The court held that the applicant had not demonstrated that the decision was flawed or that the Minister had acted unfairly. Consequently, the court dismissed the application and ordered that the applicant pay the Minister’s costs in the sum of $6,000.00.

Orders

Orders of the court

The Application is dismissed.

The Applicant is to pay the Respondent’s costs in the sum of $6,000.00.

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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