SZFDE v Minister for Immigration - [2005] FMCA 1979

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFDE & ORS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1979

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – where applicants did not attend the Refugee Review Tribunal hearing – fraud – allegation of fraud by a third party purporting to be a solicitor and migration agent – where Refugee Review Tribunal became aware that the migration agent’s registration had been cancelled – where letter to applicants advising migration agent’s registration had been cancelled was returned to RRT unclaimed.

PRACTICE & PROCEDURE – Notice of objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – two applicants are children – litigation guardian – appointment of litigation guardian.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 422B, 425, 474, 476(1)(f)(repealed), 477, 483A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 followed Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 cited R v Gillyard (1848) 12 QB 827; 116 ER 965 cited R v Recorder of Leicester; Ex parte Wood [1947] KB 726 cited R v West Sussex Quarter Sessions; Ex parte Albert and Maud Johnson Trust Ltd [1974] 1 QB 24 cited Lazarus Estates Ltd v Beasley [1956] 1 QB 702 cited Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387 cited Taylor v Taylor (1978-9) 143 CLR 1 cited Baker v Canada [1999] 2 SCR 817 cited Hot Holdings v Creasy (2002) 210 CLR 438 cited Minister for Multicultural Affairs v Mohammad [2000] FCA 1275 R v Deland; Ex parte Willie (1996) 135 FLR 231 Connell v Gunning (1993) 10 WAR 402 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 R v Secretary of State for the Home Department; Ex parte Al-Mehdawi [1990] 1 AC 876
First Applicant:	SZFDE

Second Applicant:

SZFDF

Third Applicant:

SZFDG

Fourth Applicant:

SZFDH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3495 of 2004

Judgment of:

Scarlett FM

Hearing date:

19 September 2005

Date of Last Submission:

19 September 2005

Delivered at:

Sydney

Delivered on:

20 December 2005

REPRESENTATION

Counsel for the Applicant:

Mr Karp

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the Respondent:

Mr Kennett

Solicitors for the Respondent:

Phillips Fox

ORDERS

That the Refugee Review Tribunal is joined as Second Respondent to the application.
That Applicant SZFDF is appointed litigation guardian of Applicants SZFDG and SZFDH.
That there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal (“the Tribunal”) made on

11^th

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 1979
Decision Date: 20 December 2005

CaseChat Overview and Summary

The case of SZFDE v Minister for Immigration involves an application for judicial review of a decision made by the Refugee Review Tribunal, affirming a delegate's decision not to grant protection visas to the applicants. The applicants, who did not attend their hearing, alleged fraud involving a third party purporting to be a solicitor and migration agent. The Tribunal became aware that the migration agent's registration had been cancelled, and a letter advising the applicants of this was returned unclaimed. The central issue before the court was whether the applicants' failure to attend their hearing and the alleged fraud could be grounds for setting aside the Tribunal's decision.

The court considered whether the applicants' absence from the hearing, due to the alleged fraud, was a sufficient reason to set aside the Tribunal's decision. The court also examined the implications of the migration agent's cancelled registration and the undelivered letter. The court concluded that the applicants' absence and the fraud constituted a significant procedural irregularity that affected the fairness of the Tribunal's decision. The court found that the Tribunal should have been aware of the fraud and taken steps to address it, and the failure to do so was a material error.

In light of the findings, the court quashed the decision of the Refugee Review Tribunal and ordered a mandatory review of the delegate's decision. The court appointed a litigation guardian for the child applicants and ordered the Minister to pay the applicants' costs. The court's decision emphasised the importance of procedural fairness and the need for the Tribunal to address significant irregularities in visa applications.

Orders

Orders of the court

That the Refugee Review Tribunal is joined as Second Respondent to the application.

That Applicant SZFDF is appointed litigation guardian of Applicants SZFDG and SZFDH.

That there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal (“the Tribunal”) made on

11th August 2003.

That there be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister on 29th August 2002 to refuse protection visas sought by the Applicants.

That the First Respondent is to pay the Applicants’ costs.

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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