SZFHF v Minister for Immigration - [2006] FMCA 257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFHF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 257

MIGRATION – RRT decision – Armenians claimed persecution by army officers – Tribunal rejected claims due to inconsistencies in applicants’ evidence – reliance upon their evidence given at departmental interview – failure to invite comments under s.424A – matter remitted.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth),s.39B
Migration Act 1958 (Cth),ss.424A(1), 424A(3)(a), 424A(3)(b), 483A, Pt 8

Migration Litigation Reform Act 2005 (Cth),Sch.1 cl.41

First Applicant:

SZFHF

Second Applicant:

SZFHG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3699 of 2004

Judgment of:

Smith FM

Hearing date:

7 December 2005

Delivered at:

Sydney

Delivered on:

28 February 2006

REPRESENTATION

Counsel for the Applicants:

Mr C Jayawardena

Solicitors for the Applicants:

Chandra Jayawardena Solicitor

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 13 August 2003 in matter N02/43052.
Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 6 June 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3699 of 2004

SZFHF

First Applicant

SZFHG

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 21 December 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 July 2003 and handed down on 13 August 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to…

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: [2006] FMCA 257
Decision Date: 28 February 2006

CaseChat Overview and Summary

SZFHF, the applicant, brought an action against the Minister for Immigration, the first respondent, and another entity, the second respondent, challenging a decision made by the second respondent on 13 August 2003, in matter N02/43052. This case involved an application for a review of a decision made by a delegate of the first respondent on 6 June 2002. The applicant sought to have the decision quashed and for the second respondent to redetermine the application in accordance with the law.

The court was required to determine whether the decision of the second respondent was legally sound and whether it was appropriate to issue a writ of certiorari to quash the decision. Additionally, the court had to consider whether a writ of mandamus should be issued to compel the second respondent to review the application according to law.

In reaching its decision, the court found that the second respondent's decision was flawed and not in accordance with the law. The court determined that the second respondent had not properly considered all relevant factors and had made errors in its legal analysis. As a result, the court ordered that a writ of certiorari be issued to quash the decision of the second respondent. Furthermore, the court ordered that a writ of mandamus be issued to compel the second respondent to determine the application for review according to law.

The court's final orders were that a writ of certiorari should issue to the second respondent, quashing its decision handed down on 13 August 2003. Additionally, a writ of mandamus should issue to the second respondent, requiring it to determine the application for review in accordance with the law.

Orders

Orders of the court

Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 13 August 2003 in matter N02/43052.

Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 6 June 2002.

Background

Background to the litigation

Full text does not contain this section.

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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