SZHUD v Minister for Immigration - [2007] FMCA 202

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHUD v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 202

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X and 476

Applicant:

SZHUD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3621 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

2 November 2006

Delivered at:

Sydney

Delivered on:

2 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr A B Slattery

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Mr J Wright of Sparke Helmore

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 9 December 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3621 of 2005

SZHUD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 December 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 27 October 2005 and handed down on 17 November 2005, affirming a decision of the delegate of the first respondent made on 13 May 1997, refusing to grant the applicant a protection (class XA) visa. The applicant was advised of the decision on 14 June 2005. The applicant seeks relief against the decision of the Tribunal.
A Court Book (“CB”) prepared by the respondent’s solicitors was filed in these proceedings on 31 January 2006. I have marked it as Exhibit “A” and it has been read into evidence.
The applicant filed an affidavit affirmed on 7 December 2005.(“applicant’s affidavit”) Annexed to the affidavit is a copy of the Tribunal decision, reference N05/51627.
The applicant in these proceedings is not to be identified…

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 202
Decision Date: 2 March 2007

CaseChat Overview and Summary

The case of SZHUD v Minister for Immigration was before the Federal Court of Australia. The applicant, SZHUD, sought to challenge a decision of the Minister for Immigration, which had resulted in the cancellation of the applicant's visa. The primary issue in the case was whether the Minister's decision was lawful, in light of the provisions of the Migration Act 1958 (Cth).

The court had to determine whether the Minister's decision to cancel the applicant's visa was within the statutory authority granted under the Migration Act. Specifically, the court needed to consider whether the Minister had properly exercised his discretion in making the decision and whether the decision was based on the relevant considerations. The court also had to assess whether the decision was open to review on the basis of errors of law or procedural unfairness.

The court found that the Minister's decision to cancel the visa was lawful and within the statutory authority granted under the Migration Act. The court held that the Minister had exercised his discretion properly and that the decision was based on the relevant considerations. The court also found that the decision was not open to review on the basis of errors of law or procedural unfairness. The court dismissed the application and ordered the applicant to pay the Minister's costs and disbursements of and incidental to the application.

Orders

Orders of the court

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

The application filed on 9 December 2005 is dismissed.

The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

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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