SZFFV v Minister for Immigration - [2005] FMCA 365

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFFV & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 365

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious and polticial persecution in India – alleged bias and bad faith – applicants attempting to tender additional evidence at the handing down of RRT decision – RRT justified in refusing to alter its decision – application dismissed.

PRACTICE AND PROCEDURE – Refusal of adjournment where applicant awaiting documents to support protection visa claims and money to pay for a lawyer – applicant is already in receipt of legal advice and other assistance.

Migration Act 1958 (Cth), s.424A

Minister for Immigration v Guo (1997) 144 ALR 567
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NADR v Minister for Immigration (2002) 124 FCR 465
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v Minister for Immigration (1994) 34 ALD 347

First Applicant:

Second Applicant:

SZFFV

SZFFW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG3632 of 2004

Judgment of:

Driver FM

Hearing date:

21 March 2005

Delivered at:

Griffith

Delivered on:

21 March 2005

REPRESENTATION

The applicants appeared in person

Counsel for the Respondent:

Mr A Markus

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Court directs that exhibit A1 be returned to the applicants.
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3632 of 2004

SZFFV

First Applicant

SZFFY

Second Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was signed on 28 October 2004 and handed down on 18 November 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant and his wife protection visas. The applicants are a husband and wife from Gujurat in India. The relevant protection visa claims were made by the first applicant, the applicant husband. I adopt by way of background relevant parts of paragraphs 2-10 of written submissions prepared by Mr Markus on behalf of the Minister:
The applicants are husband and wife and citizens of India.[1] They arrived in Australia on 4 June 2004.[2] On 17 June 2004 the applicants lodged an application for a protection (Class XA) visa.[3] Only the applicant husband (hereafter “the applicant”) made specific claims under the Refugees Convention, the applicant wife relying on her membership of his family.
The applicant’s claims were detailed in the protection visa application,[4] and were in substance re-stated in his application for review to the RRT.^[5]
In summary, the applicant claimed a well-founded fear of persecution in India on the bases of his religious beliefs (Hindu) and political opinion (as a…

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 365
Decision Date: 21 March 2005

CaseChat Overview and Summary

In the Federal Circuit Court, the applicants, SZFFV, sought judicial review of a decision by the Refugee Review Tribunal (RRT) that refused them protection visas. The applicants, who claimed to be facing religious and political persecution in India, argued that the RRT's decision was biased and made in bad faith. They also attempted to present additional evidence at the time the RRT decision was handed down, which the RRT refused to consider. The applicants further sought an adjournment to obtain documents and funds to hire a lawyer to assist with their case.

The court examined whether the RRT's refusal to consider additional evidence at the time of its decision was justified and whether the applicants' claims of bias and bad faith were valid. The court also considered the applicants' request for an adjournment to obtain documents and funds for legal representation.

The court found that the RRT was justified in not altering its decision to consider additional evidence at the time of the decision, as the applicants had not demonstrated any grounds for such a change. The court also rejected the applicants' claims of bias and bad faith, finding no evidence to support these allegations. Regarding the adjournment, the court noted that the applicants were already receiving legal advice and other assistance, and therefore, the request for an adjournment was denied.

The court dismissed the application and ordered the applicants to pay the respondent's costs and disbursements, as well as any incidental costs associated with the application, in the sum of $4,000. Additionally, the court directed that exhibit A1 be returned to the applicants.

Orders

Orders of the court

The Court directs that exhibit A1 be returned to the applicants.

The application is dismissed.

The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

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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