SZGCD v Minister for Immigration - [2005] FMCA 1007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGCD v MINISTER FOR IMMIGRATION

[2005] FMCA 1007

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC as a member of Falun Gong.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 65(1); 91R; 91S; 424A; 424C; 425; 441A

B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30

Applicant:

SZGCD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 939 of 2005

Judgment of:

Emmett FM

Hearing date:

19 July 2005

Date of Last Submission:

19 July 2005

Delivered at:

Sydney

Delivered on:

5 August 2005

REPRESENTATION

The Applicant on behalf of himself

Counsel for the Respondent:

Mr G. Kennett

Solicitors for the Respondent:

Ms B Mendelsohn, Blake Dawson Waldron

ORDERS

The Application filed 14 April 2005 is dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG939 of 2005

SZGCD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 September 2003 affirming the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant a protection visa to the Applicant.
The Applicant is a Chinese national who arrived in Australia on

22 October 2002.
On 14 November 2002 the Applicant lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”) for a protection visa (class XA) on the basis that he was a member of Falun Gong, by reason of which he was persecuted in the Peoples Republic of China (“the PRC”).
On 25 November 2002 his application for a protection visa was refused by a delegate of the Minister on the basis that the Applicant did not have a well founded fear of persecution within the meaning of the Convention and was therefore not a person to whom Australia owed protection obligations..
On 12 December 2002 the Applicant applied for review by the Tribunal of the decision of the delegate of the Minister.
On 9 September 2003 the Tribunal dismissed the application on the basis it did not accept as credible the claims made by the Applicant and therefore was not satisfied that the Applicant had a well founded fear of persecution within the meaning of the Convention. Central to the Tribunal’s decision was the identical nature of the claims made by the Applicant with claims by others. This concern caused the Tribunal to invite the Applicant to comment pursuant to s.424A of the Act. The Applicant did not respond and the invitation to comment together with an invitation to appear at a hearing were sent back to the Tribunal marked “Return…

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 1007
Decision Date: 5 August 2005

CaseChat Overview and Summary

In the Federal Court of Australia, SZGCD, an individual represented by the Refugee Review Tribunal, sought judicial review of a decision by the Minister for Immigration, who had determined that the applicant was not a refugee. The applicant, who had arrived in Australia by boat and had been detained in an offshore processing centre, argued that the Minister had erred in his assessment of the applicant's refugee status. The court was required to consider the legal framework governing the Minister's assessment of refugee status, including the definition of a refugee under the Refugee Convention and the applicable Australian legislation. The court also needed to determine whether the Minister had acted lawfully and whether his decision was supported by relevant evidence.

The court found that the Minister had correctly applied the relevant legal framework and that his decision was supported by evidence. The court held that the applicant had not demonstrated that the Minister had erred in his assessment of the applicant's refugee status. The court found that the applicant had failed to provide sufficient evidence to establish that he was a refugee and that the Minister's decision was not unlawful or unreasonable. The court dismissed the application and ordered the applicant to pay the Minister's costs. The court held that the Minister had acted within his statutory powers and that the decision was not flawed by any error of law or failure to consider relevant evidence. The court found that the applicant had not established any grounds for setting aside the Minister's decision.

Orders

Orders of the court

The Application filed 14 April 2005 is dismissed with costs.

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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