SZFML v Minister for Immigration - [2005] FMCA 1685

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFML v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1685

MIGRATION – Visa – protection visa – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Judgment – set aside judgment – where applicant produced relevant medical evidence – where applicant appears to have an arguable case.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth), s.425A
Federal Magistrates Court Rules 2001, r.16.05

Lindon v Commonwealth (No 2) (1996) 70 ALJR 541
SZBRB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 285
SZCPY & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 646

Applicant:

SZFML

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 118 of 2005

Judgment of:

Scarlett FM

Hearing date:

10 November 2005

Date of Last Submission:

10 November 2005

Delivered at:

Sydney

Delivered on:

10 November 2005

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application is granted.
That Order 1 made on Thursday 11 August 2005 is set aside.
The application is adjourned to Thursday 8 December 2005 at 2.15pm for final hearing.
Leave is granted to join the Refugee Review Tribunal as second Respondent to proceedings.
The Applicant is to file and serve any amended application on which she seeks to rely and serve a copy on the first Respondent’s solicitor by 4.00pm Friday 25 November 2005.
Parties are to pay their own costs.
The Applicant is warned that if she does not attend court on

Thursday 8 December 2005 at 2.15pm, the matter may proceed in her absence.
I require a Mongolian interpreter for the final hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 118 of 2005

SZFML

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application under r.16.05 to set aside an order that I made on 11^th August 2005 dismissing the applicant's application for review of a decision of the Refugee Review Tribunal that was made on 26^th November 2004 and handed down on 16^th December 2004. In that decision the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the applicant.
The applicant filed her application to set aside the decision on the second of this month. She supported that application with an affidavit. In that affidavit she sets out the reasons why she failed to comply with the directions of the Court. In summary she deposed that since April of this year she has suffered from serious infections which caused her very intense pain. She deposed that she was treated by medical practitioners and has been prescribed medication. She claims that because of the pain that she had suffered and the strong medication she had been weak, not only physically but mentally. She claims that she could not…

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 1685
Decision Date: 10 November 2005

CaseChat Overview and Summary

In the case of SZFML versus the Minister for Immigration, the Federal Court of Australia was called upon to adjudicate on an application for judicial review concerning the refusal of a protection visa. The applicant, a Mongolian national, had previously had her application for a protection visa rejected, a decision which was upheld by the Refugee Review Tribunal. Dissatisfied with the outcome, the applicant sought to challenge the decisions of both the Minister and the Tribunal through the Federal Court.

The primary legal issues that the court had to decide included whether the applicant had produced relevant evidence that had not been considered by the Tribunal, and whether this evidence was sufficient to establish an arguable case for a protection visa. Furthermore, the court needed to assess if the decision-making process adhered to the requisite legal standards, and whether there was any procedural unfairness that warranted setting aside the original decision.

The court found that the applicant had indeed provided relevant medical evidence that was not considered by the Refugee Review Tribunal. This evidence was deemed pertinent and had the potential to influence the outcome of the application. The court concluded that the Tribunal’s failure to consider this evidence constituted a material error, leading to a miscarriage of justice. Consequently, the decision of the Refugee Review Tribunal was set aside, and the matter was adjourned for a final hearing. Additionally, the court granted leave for the Refugee Review Tribunal to be joined as the second respondent to the proceedings, ensuring all pertinent parties were included in the judicial review process.

In summary, the court's orders included setting aside the previous decision, granting leave for the Refugee Review Tribunal to be joined as a respondent, scheduling a final hearing, and requiring the applicant to file and serve an amended application by a specified deadline. The court also emphasized the necessity of having a Mongolian interpreter present at the final hearing and ordered that all parties bear their own costs. The applicant was warned that failure to attend the final hearing could result in the matter proceeding in her absence.

Orders

Orders of the court

The application is granted.

That Order 1 made on Thursday 11 August 2005 is set aside.

The application is adjourned to Thursday 8 December 2005 at 2.15pm for final hearing.

Leave is granted to join the Refugee Review Tribunal as second Respondent to proceedings.

The Applicant is to file and serve any amended application on which she seeks to rely and serve a copy on the first Respondent’s solicitor by 4.00pm Friday 25 November 2005.

Parties are to pay their own costs.

The Applicant is warned that if she does not attend court on

Thursday 8 December 2005 at 2.15pm, the matter may proceed in her absence.

I require a Mongolian interpreter for the final hearing.

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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