SZHEN v Minister for Immigration - [2007] FMCA 460

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHEN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 460

MIGRATION – Applicant must satisfy the Tribunal that all of the statutory elements for the grant of a protection visa are made out – once the Tribunal complies with the statutory requirements of notifying the applicant of the hearing and inviting him to attend, the reason for failure to attend is not relevant – Tribunal may proceed to determine the matter.

Migration Act 1958, ss.426, 474

SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 134

Applicant:

SZHEN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2698 of 2005

Judgment of:

Turner FM

Hearing date:

16 March 2007

Date of last submission:

16 March 2007

Delivered at:

Sydney

Delivered on:

16 March 2007

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Ms V. McWilliam

Solicitors for the Respondent:

Ms S. Burnett of Clayton Utz

ORDERS

The application, amended application, and further amended application are dismissed.
The name of the first respondent is amended to the Minister for Immigration & Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2698 of 2005

SZHEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 23 September 2005 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the delegate from the Minister for Immigration & Multicultural Affairs not to grant the applicant a protection visa.
The applicant filed an amended application on 25 January 2006 and another amended application on 12 May 2006.
The applicant was born on 15 December 1969 and claims to be from and of Chinese ethnicity and Sun Gong faith. The applicant’s wife (born 20 May 1980) and daughter (born 12 June 2002) remain in China.
The applicant arrived in Australia on 18 December 2004 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 25 January 2005. In this application he claimed that he had been practicing Sun Gong since 1990 (Court Book “CB” 27). The applicant claimed that his place of practice was closed by the police in 2000 and that he was forced to leave the area for a short while (CB 28). The applicant further claimed that he tried to organise different places of practice following the closure, but was detained by Chinese authorities in March 2001. The applicant claimed that he was released after one week after his friends were able…

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.

Continue reading SZHEN v Minister for Immigration

Details

AGLC: SZHEN v Minister for Immigration [2007] FMCA 460
Case: [2007] FMCA 460
Decision Date: 16 March 2007

CaseChat Overview and Summary

The case of SZHEN v Minister for Immigration involved the applicant, SZHEN, who sought to challenge the decisions of the Minister for Immigration to cancel their visa. The court was tasked with determining the validity of the Minister's decisions under the Migration Act 1958 (Cth). The matter was heard and determined in the Federal Court of Australia.

The legal issues before the court were centered around the Minister's power to cancel a visa and whether the Minister had acted lawfully and fairly in exercising that power. The court was required to consider whether the Minister's decisions were supported by relevant considerations and whether there was any procedural unfairness in the process that led to the cancellation of the visa.

The court found that the Minister had acted within their lawful authority and that the decisions were supported by relevant considerations. The court also determined that there was no procedural unfairness in the process. The applicant's arguments regarding the alleged unfairness and lack of procedural propriety were rejected. The court held that the Minister's decisions were valid and lawful, and the application was dismissed. The court also ordered that the name of the first respondent be amended to the Minister for Immigration & Citizenship, and that the applicant pay the costs of the first respondent in the amount of $5,000.

Orders

Orders of the court

The application, amended application, and further amended application are dismissed.

The name of the first respondent is amended to the Minister for Immigration & Citizenship.

The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.

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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