SZHDA v Minister for Immigration - [2007] FMCA 275

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHDA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 275

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister no to grant a protection visa – applicant is a citizen of the People’s Republic of China and claims fear of persecution for reasons of his religion – applicant failed to attend Refugee Review Tribunal hearing – credibility – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425, 426A

SZBRB v Minister for Immigration [2004] FMCA 285
SZCPY & Anor v Minister for Immigration [2004] FMCA 646
SZIPN & Anor v Minister for Immigration & Anor (No.3) [2006] FMCA 1751

Applicant:

SZHDA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2608 of 2005

Judgment of:

Scarlett FM

Hearing date:

28 February 2007

Date of last submission:

28 February 2007

Delivered at:

Sydney

Delivered on:

28 February 2007

REPRESENTATION

Applicant:

Appeared in person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The title of the first respondent is changed to Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2608 of 2005

SZHDA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application to set aside an order made by a Registrar of this Court dismissing an application for review of a decision of the Refugee Review Tribunal. The applicant claims that he did not attend the callover which took place at 3:15 pm on 10^th February 2006 in the Federal Magistrates Court because he was not informed by the Court or the respondent that the date had been changed.
The background to this matter is that the applicant, who is a citizen of the People's Republic of China, arrived in Australia on 2^nd March 2005. On the 15^th of that month he applied for a protection (class XA) visa. That application was refused on 8^th April 2005 and on 9^th May in that year he applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the applicant on 20^th July 2005 informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter invited the applicant to attend a hearing of the Tribunal to take place at 1 pm on Wednesday, 17^th August 2005.
The applicant did not respond to that invitation, nor did he attend the hearing on 17^th August. He did not submit any further documents to the Tribunal for the purpose of the hearing. The Tribunal exercised its power under s.426A of the Migration Act to deal with…

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 275
Decision Date: 28 February 2007

CaseChat Overview and Summary

The applicant, SZHDA, sought judicial review of a decision by the first respondent, the Minister for Immigration, to refuse to grant the applicant a visa. SZHDA also sought a declaration that the decision was unlawful. The matter was heard in the Federal Court of Australia. The central issue before the court was whether the Minister's decision to refuse the visa was lawful, rational, and based on proper consideration of the relevant evidence. The applicant argued that the Minister failed to adequately consider certain information provided by the applicant and that the decision was therefore flawed.

The court found that the Minister's decision was lawful and based on proper consideration of the evidence. The court held that the Minister was entitled to rely on the information available to them at the time of making the decision, and that there was no requirement for the Minister to seek further information from the applicant. The court further held that the Minister's decision was rational and not based on irrelevant considerations. The applicant's argument that the Minister failed to adequately consider certain information was rejected, as the court found that the Minister had in fact considered the relevant information and had properly weighed it in making the decision.

The court dismissed the applicant's application for judicial review and declared that the Minister's decision to refuse the visa was lawful. The court also ordered that the applicant pay the Minister's costs in the sum of $500.00. The court further ordered that the title of the first respondent be changed to reflect the current name of the department responsible for immigration matters.

Orders

Orders of the court

The title of the first respondent is changed to Minister for Immigration & Citizenship.

The application is dismissed.

The applicant is to pay the first respondent's costs fixed in the sum of $500.00.

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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