SZEQF v Minister for Immigration - [2005] FMCA 1819

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQF v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1819

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Mongolia by reason of his religion – applicant claims that decision of Tribunal to proceed to review in absence of applicant was unreasonable.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36; 65; 424; 424C; 426A; 441A; 474; 483

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration and Multicultural Affairs [2003] FCA 1474
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 683
s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283

Applicant:

SZEQF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3194 of 2004

Judgment of:

Emmett FM

Hearing date:

28 November 2005

Date of Last Submission:

28 November 2005

Delivered at:

Sydney

Delivered on:

28 November 2005

REPRESENTATION

Counsel for the Applicant:

Mr D. Burwood

Counsel for the Respondent:

Mr G. Johnson

Solicitors for the Respondent:

Ms E. Knight, Australian Government Solicitor

ORDERS

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the Applicant’s applications before this Court are dismissed with costs.
That the Applicant pay the First Respondent’s costs in an amount of $5020.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3194 of 2004

SZEQF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visas to the applicants.
The Applicant was born in Mongolia on 2 February 1978, and was born as a Mongolian citizen. He claims to remain a Mongolian citizen.
The Applicant claims to belong to the Mongol ethnic group and claims that he legally departed from Ulaan Baatar on 22 November 2003.
The Applicant arrived in Australia on 23 November 2003.
On 23 December 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that if he returns to Mongolia he will be persecuted for reason of his religion, being a Mormon. The Applicant claims that he is a Morman and was victimised, humiliated, verbally and physically abused by individuals and the police. The Applicant fears that if he returns to Mongolia he will “again be victimised by individuals…

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 1819
Decision Date: 28 November 2005

CaseChat Overview and Summary

In the case of Szeqf v Minister for Immigration, the applicant contested the decision of the Minister for Immigration to cancel his visa. The Federal Court of Australia was tasked with determining whether the applicant was entitled to have the Refugee Review Tribunal added as a second respondent in his application and whether the visa cancellation decision was lawful. The court had to decide on the procedural fairness of the tribunal's process and the merits of the visa cancellation decision.

The central legal issues were whether the court had the jurisdiction to allow the late addition of the tribunal as a second respondent and whether the visa cancellation was valid under the Migration Act. The applicant argued that the tribunal's decision-making process was unfair and that the visa cancellation was not supported by proper evidence. The Minister contended that the application was time-barred and that the tribunal's process was fair and lawful.

The court ruled that it had the authority to permit the late addition of the tribunal as a second respondent. However, the court found that the tribunal's process was fair and that the visa cancellation was justified by the evidence. The applicant's arguments regarding procedural unfairness were dismissed, and the court upheld the Minister's decision to cancel the visa. Consequently, the court dismissed the applicant's applications and ordered him to pay the Minister's costs.

The court granted the applicant's request to add the tribunal as a second respondent but dismissed the substantive application. The court also ordered the applicant to pay the Minister's costs, amounting to $5020.00.

Orders

Orders of the court

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

That the Refugee Review Tribunal be joined as Second Respondent.

That the Applicant’s applications before this Court are dismissed with costs.

That the Applicant pay the First Respondent’s costs in an amount of $5020.00.

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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