FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 331 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – merits review not the function of judicial review – procedural fairness – whether persecution involves ‘systematic and discriminatory conduct’ pursuant to s.91R(1)(c) – whether ‘international standards’ of state protection apply –whether ‘serious harm’ pursuant to s.91R(2)(a) – whether country information misapplied – bias – onus of proof – benefit of the doubt – whether proper consideration of claims – whether definition of ‘refugee’ misapplied. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424A, 425, 474, 476 |
| Applicant: | SZHMN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1947 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 5 December… |
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Details
- Case
- [2008] FMCA 331
- Decision Date
CaseChat Overview and Summary
In the case of SZHMN v Minister for Immigration, the applicant father and his daughter sought judicial review of the decisions made by the Tribunal regarding their refugee status and the fairness of the proceedings. The Court was required to determine whether the Tribunal erred in deciding that the applicants were not refugees and if the applicants were denied natural justice in the proceedings. The applicants argued that the Tribunal failed to properly consider their refugee claims and that the proceedings were unfair. However, the Court found that the applicants had not provided sufficient evidence to support their claims of unfairness and that they were not entitled to common law procedural fairness. The Court held that the Tribunal had followed the statutory expression of natural justice as outlined in the Act.
The Court concluded that the Tribunal's decision that the applicants were not refugees was correct and that there was no error in the proceedings. The Court also rejected the applicants' claim that they were denied natural justice, noting that they had not provided sufficient evidence to support their allegations. The Court held that the applicants were not entitled to common law procedural fairness and that the Tribunal had followed the statutory expression of natural justice. The application was dismissed, and no order was made as to costs.
The Court concluded that the Tribunal's decision that the applicants were not refugees was correct and that there was no error in the proceedings. The Court also rejected the applicants' claim that they were denied natural justice, noting that they had not provided sufficient evidence to support their allegations. The Court held that the applicants were not entitled to common law procedural fairness and that the Tribunal had followed the statutory expression of natural justice. The application was dismissed, and no order was made as to costs.
Orders
Orders of the court
1.
The application filed on 22 June 2007 and the amended application filed on 14 November 2007 are dismissed.
2.
No order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Court agreed to the applicant father's request that it hold a joint hearing with the applicant daughter’s application (as had been done before the Tribunal), given that the amended applications [and original applications] filed in both sets of proceedings raised identical grounds of review. Likewise, the Court has handed down identical Reasons for decision in both sets of proceedings in regard to the grounds raised in the respective applications, amended applications, and the applicant father’s and applicant daughter’s written submissions (see SZCAL v Minister for Immigration & Anor [2008] FMCA 330). The grounds of the application are:(1)The Tribunal erred in deciding that the applicants are not a refugee.(2)The Tribunal was unfair and denied the applicants natural justice. This ground is not particularised. It seeks that the Court engage in merits review which is not the function of this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (and see The applicants’ and applicant daughter’s written submissions, Particular 6 below). Accordingly, Ground 1 of the application is rejected. The applicants and applicant daughter have not particularised how they say they have been denied natural justice in this case. Whilst the applicant father submitted to this Court that he objected at the Tribunal hearing to the member not being prepared to listen to his refugee claims, I note that the applicants and applicant daughter have not sought to put the transcript of the evidence of the Tribunal hearing or any other admissible evidence before this Court on the point. As stated by the Full Federal Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]:In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. I note that the applicants’ migration agent brought a complaint to the attention of the Principal member immediately after the Tribunal hearing, seeking that the member who conducted the hearing be disqualified alleging that she repeatedly asked the wrong questions, and annexing unsourced portions of the transcript of the Tribunal hearing (see CB 200 – 209). I further note that the Principal member of the Tribunal (after a senior member had listened to the tapes of the applicant’s and his daughter’s hearings), did not accept that there was any substance in the complaint and was of the view that the member had conducted the review “appropriately in the circumstances” (CB 210). In any event, the applicants and applicant daughter are not entitled to common law procedural fairness: s.422B of the Act. The Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8].
Ratio Decidendi
Legal Principle Established
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