SZFYS v Minister for Immigration - [2005] FMCA 1172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFYS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1172

MIGRATION – RRT decision – applicant did not attend hearing – no error by Tribunal making decision without taking further action – possible misconduct by agent irrelevant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.48B, 91R(1)(b), 91R(2), 412(1)(a), 414(1), 422B, 422B(1), 424A(1), 424A(3)(b), 425(1), 425A, 426A, 426A(1), 441A(4), 441A(4)(i), 441A(4)(ii), 441C(4), 441G(1), 474(1), 483A, Pt 7 Div 4, Pt 8
Migration Regulations 1994 (Cth), reg.4.35D

Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
R v Secretary of State for the Home Department; Ex parte Al Mehdawi [1990] 1 AC 876
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SZEMB v Minister for Immigration [2005] FMCA 448
SZEUZ v Minister for Immigration [2005] FMCA 967
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZFYS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG744 of 2005

Judgment of:

Smith FM

Hearing date:

17 August 2005

Delivered at:

Sydney

Delivered on:

26 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Refugee Review Tribunal be included as second respondent.
The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG744 of 2005

SZFYS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks relief by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 October 2003 and handed down on 30 October 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself 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: [2005] FMCA 1172
Decision Date: 26 August 2005

CaseChat Overview and Summary

In the case of SZFYS v Minister for Immigration, the applicant, SZFYS, seeks judicial review of a decision made by the Refugee Review Tribunal (the Tribunal) which affirmed a delegate's decision to refuse a protection visa. The application is brought under section 483A of the Migration Act 1958 (Cth), which grants the Court the same jurisdiction as the Federal Court in relation to matters arising under the Act. The primary issue for the court to decide was whether the Tribunal decision was affected by jurisdictional error. The court was also required to determine whether it had the power to set aside the Tribunal decision and send the matter back, and if so, whether it had the authority to decide whether the applicant qualified for a refugee visa.

The court examined the evidence and submissions presented by the parties and concluded that it did not have the power to decide whether the applicant qualified for a refugee visa. The court found that the limitations on judicial review of decisions made under the Migration Act meant that it could only set aside the Tribunal decision if it was satisfied that the decision was affected by jurisdictional error. The court did not find any jurisdictional error in the Tribunal decision and therefore dismissed the application. The court also noted that it was not necessary to resolve certain factual issues, such as the address given by the applicant to the migration agent, in order to determine the outcome of the case.

The court dismissed the application and ordered that the Refugee Review Tribunal be included as a second respondent. This means that the Tribunal will be formally notified of the court's decision and will have the opportunity to respond if it wishes to do so. The court's decision means that the Tribunal decision stands and the applicant's application for a protection visa remains refused.

Orders

Orders of the court

The Refugee Review Tribunal be included as second respondent.

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks relief by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 October 2003 and handed down on 30 October 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa. The applicant arrived in Australia on a one month business visa in November 2002. On 13 November 2002, four days after his arrival, an application for a protection visa was lodged in his name. The application was signed in relevant places by the applicant. He has today confirmed his signature, although he maintains that the forms were blank when he signed them. Whether or not this is true, he does not contest that he authorised a migration agent, Mr Jack Meng, to take all steps necessary to make applications and to obtain a favourable decision. The forms included a written authorisation by the applicant of Mr Meng to act on his behalf in all “dealings with the Department of Immigration and Multicultural and Indigenous Affairs”. The forms gave Mr Meng’s address as the applicant’s “current postal address in Australia” and, at two places, gave an address at Hurstville as the applicant’s “current residential address in Australia”. The applicant in oral evidence before me denied that he had ever given this address to Mr Meng and that he had ever lived at that address. For most of his evidence he maintained that he had always lived at Parramatta, although he could not recall the street name. At the end of his evidence he also recalled living in a hotel in Sydney for a short period after arriving in Australia. If so, it is possible that Mr Meng might have inserted a residential address where he thought the applicant might be moving to, but it is difficult to believe that he would have inserted an address without any relevant instructions. In the absence of evidence from Mr Meng, and given the lapse of time and the applicant’s poor memory which was apparent when he gave evidence, I am reluctant to draw conclusions on what home address or addresses were given by him to Mr Meng in 2002. As I shall indicate below, this is a factual issue which I do not consider that I need to resolve.