SZFPD v Minister for Immigration - [2006] FMCA 863

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFPD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 863

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and other persecution in Egypt – whether the RRT misunderstood corroborative evidence of the applicant’s claim or implicitly accused the applicant of fraud considered – whether the presiding member should have considered the possibility that she might be wrong in assessing the veracity of the applicant’s claims considered.

Migration Act 1958 (Cth), s.424

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration v Rajalingham (1993) 93 FCR 220
Minister for Immigration v Rajamanikkam (2002) 210 CLR 222
SZFVL v Minister for Immigration [2005] FMCA 991
WADF v Minister for Immigration (2004) 80 ALD 568

Applicant:

SZFPD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG216 of 2005

Judgment of:

Driver FM

Hearing date:

16 June 2006

Date of Last Submission:

20 July 2006

Delivered at:

Sydney

Delivered on:

7 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Sedra & Associates

Counsel for the Respondents:

Ms S McNaughton

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal made on 19 March 2004 and handed down on 8 April 2004.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG216 of 2005

SZFPD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 8 April 2004. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. These proceedings commenced with a judicial review application filed on 25 January 2005. By notice filed on 8 June 2006 the Minister objects to the competence of that application on the basis that it is out of time. That depends upon whether the RRT decision is vitiated by a jurisdictional error. Ms McNaughton, for the Minister, made clear at the trial of this matter on 16 June 2006 that, apart from objecting to the competence of the application, the Minister does not raise any issue of delay in bringing the proceedings.
I adopt the following information from written submissions filed on behalf of the applicant and the Minister. In August 2002 the applicant arrived in Australia (court book, page 234.1). In November 2002 the applicant lodged an application for a protection visa (court book, pages 1-99) The application included:
a)a 10 page statement in which the applicant set out his claims; (court book, pages 27-36)
b)a police officer’s report dated 9 February 2002 in relation to a complaint by the applicant on that day; (court book, pages 45-48) and

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 863
Decision Date: 7 September 2006

CaseChat Overview and Summary

In the matter of SZFPD versus the Minister for Immigration, the High Court of Australia was called upon to determine the validity of a decision made by the Refugee Review Tribunal. SZFPD, a person claiming to be a refugee, sought judicial review of the Tribunal's decision that refused their application for a protection visa. The central issue before the Court was whether the Tribunal had acted in a way that was inconsistent with the Migration Act 1958, particularly in regard to the process and considerations applied in making the decision.

The legal issues that the Court was required to decide included whether the Tribunal had appropriately assessed the credibility of SZFPD's claims and whether it had adhered to the correct legal standards when evaluating the evidence presented. Furthermore, the Court had to determine if the Tribunal's decision-making process complied with the principles of natural justice and whether the Tribunal had failed to consider relevant material.

The Court concluded that the Tribunal had indeed erred in its assessment of SZFPD's claims, particularly in not adequately considering the credibility of the evidence presented and failing to apply the correct legal standards. The Court found that the Tribunal had acted in a way that was inconsistent with the Migration Act, thus rendering the decision unlawful. Consequently, the Court quashed the decision of the Tribunal and ordered the Tribunal to redetermine the application in accordance with the law.

Orders

Orders of the court

A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal made on 19 March 2004 and handed down on 8 April 2004.

A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

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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