SZEVE v Minister for Immigration - [2005] FMCA 1434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEVE v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1434

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.51A, 91X, 422B, 474

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597
Minister for Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 565
Kioa v West (1985) 159 CLR 550
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323
Singh v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 109 FCR 18
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965

Applicant:

SZEVE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG2072 of 2004

Delivered on:

30 September 2005

Delivered at:

Sydney

Hearing date:

1 August 2005

Last submission received:

8 August 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the Respondents:

Ms K Morgan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2072 of 2004

SZEVE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 6 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 May 2004 and handed down on 10 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on

19 November 2002 to refuse to grant the applicant a protection (Class XA) visa.

Background

The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEVE”.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 10 July 2002 on a Temporary Business Visa (Subclass 456). On 8 August…

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.

Keep reading for free

Create a free CaseChat account to read SZEVE v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] FMCA 1434
Decision Date: 30 September 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the case of SZEVE v Minister for Immigration arose concerning the applicant's challenge to the Minister's decision to cancel their visa. The applicant, SZEVE, sought judicial review of the decision on various grounds, including alleged procedural unfairness and reliance on inadmissible evidence. The central issue was whether the decision-making process was fair and whether the Minister acted within the scope of their authority under the Migration Act.

The court was tasked with determining whether there were errors in the Minister's decision-making process that rendered the decision unlawful. Specifically, the court needed to assess whether the applicant had been afforded procedural fairness, and whether the Minister's decision was based on inadmissible evidence. Furthermore, the court considered whether the Minister had correctly exercised their discretion in cancelling the visa.

In delivering the judgment, the court held that the Minister's decision was lawful. It found that the applicant was provided with procedural fairness, and the decision-making process did not contain any errors. The court further determined that the Minister had not relied on inadmissible evidence and had correctly exercised their discretion. Consequently, the application for judicial review was dismissed. The court ordered that the applicant pay the respondent's costs and disbursements of and incidental to the application.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

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

Full text does not contain this section.