SZGDO v Minister for Immigration - [2007] FMCA 1183

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGDO v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1183

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in Argentina – applicant not believed – Tribunal also finding no Convention nexus with the applicant’s claims and that the applicant enjoyed a right to live in a third country – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.36, 91N, 424A

Koroitamana v Commonwealth of Australia (2006) 227 ALR 406
Minister for Immigration; Ex parte Applicant S20/2003 (2003) 198 ALR 59
Morato v Minister for Immigration (1992) 39 FCR 401
NAGV & NAGW of 2002 v Minister for Immigration [2005] HCA 6
Ram v Minister for Immigration (1995) 57 FCR 565
Re Minister for Immigration; Ex parte Ame (2005) 222 CLR 439
Singh v Commonwealth (2004) 209 ALR 355
Sykes v Cleary (1992) 176 CLR 77

Applicant:

SZGDO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1437 of 2007

Judgment of:

Driver FM

Hearing date:

20 July 2007

Delivered at:

Sydney

Delivered on:

31 July 2007

REPRESENTATION

Solicitors for the Applicant:

Mr J B Hajje
John B Hajje & Associates

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1437 of 2007

SZGDO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

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 Tribunal”). The decision was signed on 7 April 2007 and was handed down on 19 April 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
This matter has an unusual procedural history. The history is adequately summarised in written submissions filed on behalf of the applicant and the Minister. I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 1 through to 7 of the applicant’s written submissions filed on 9 July 2007 and paragraphs 2 through to 3.5 of the Minister’s written submissions filed on 18 July 2007.
The applicant was domiciled in Argentina throughout her life since her birth. She came to Australia. She arrived in Australia on 26 February 2003 with her husband and two children as visitors.
On 12 May 2003 the applicant along with her husband and the two children lodged a 866 protection visa application to DIMIA, the first respondent’s Department on account of fear they faced to their lives in Argentina due to lack of state protection against the “terror gangs”, as they belonged to a middle class social group in Argentina who were harassed, harmed and persecuted by those gangs, motivated by monetary gain.
The applicant and her husband made individual claims by submitting 866 protection visa application form “C” each, claiming their own claims to be…

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: [2007] FMCA 1183
Decision Date: 31 July 2007

CaseChat Overview and Summary

The case of SZGDO v Minister for Immigration was before the Federal Court, where the applicant, SZGDO, sought to challenge a decision of the Minister for Immigration to cancel their visa on the grounds of character. SZGDO, a non-citizen from a specified country, had their visa cancelled following an assessment of their criminal history and other character-related factors. The applicant argued that the Minister's decision was flawed, both procedurally and in terms of its substantive merits.

The court was tasked with determining whether the Minister's decision was lawful, including whether there were procedural errors in the way the decision was made, and whether the decision was based on a proper consideration of all relevant material. Key issues included the adequacy of the procedural fairness afforded to SZGDO, the interpretation of relevant statutory provisions, and the correctness of the Minister's assessment of SZGDO's character. The court also considered whether there were any errors in the application of the character test under the Migration Act.

In delivering its judgment, the court found that the decision-making process had been procedurally sound, and that the Minister had appropriately exercised their discretion in assessing SZGDO's character. The court held that the Minister's decision was not flawed and was supported by the evidence. The court concluded that the procedural fairness requirements were met, and that the Minister had correctly applied the character test, taking into account all relevant factors. As a result, the application was dismissed, and the visa cancellation stood.

Orders

Orders of the court

The application is dismissed.

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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