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SZHYB v MIMIA

SZHYB v MIMIA

Case [2007] FMCA 311 22 March 2007

Jurisdiction

Judicial Review

Immigration & Refugee Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 311

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in consideration of a right to enter and reside in another country.

Migration Act 1958, s.36

Applicant:

SZHYB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3800 of 2005

Judgment of:

Barnes FM

Hearing date:

12 December 2006

Date for Last Submission:

9 January 2007

Delivered at:

Sydney

Delivered on:

22 March 2007

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Ms S. Sirtes

Solicitors for the Respondents:

Phillips Fox

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3800 of 2005

SZHYB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 6 December 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, who is…

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 SZHYB v MIMIA

Details

AGLC: SZHYB v MIMIA [2007] FMCA 311
Case: [2007] FMCA 311
Decision Date: 22 March 2007

CaseChat Overview and Summary

The applicant, SZHYB, challenged a decision of the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse a protection visa. The case was heard by the Federal Court of Australia. SZHYB, a citizen of China, sought to overturn the Minister's decision to refuse their application for a protection visa on the grounds that they did not satisfy the criteria for a refugee as defined in the relevant legislation.

The primary legal issue before the court was whether the Minister's decision was lawful and whether the applicant satisfied the definition of a refugee under the relevant statute. The court needed to examine the evidence presented by SZHYB and determine if the Minister's findings were supported by substantial evidence and whether there were any errors in the application of the law.

The court found that the Minister's decision was well-founded and that SZHYB did not meet the criteria for a refugee. The court held that the evidence did not substantiate the applicant's claims, and the Minister's findings were reasonable and based on substantial evidence. The court further held that the applicant failed to demonstrate any errors in the application of the law by the Minister. Consequently, the court dismissed the application, upholding the Minister's decision.

Orders

Orders of the court

That the application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

SZHYB v MIMIA [2007] FMCA 311

Most Recent Citation

SZQWP v MIAC [2012] FMCA 532

Cases citing this decision · 5 of 5 shown

DED16 v Minister for Home Affairs
[2019] FCAFC 18 Para 12

…reside in the country. … 108The Tribunal notes that in SZQWP v MIAC [2012] FMCA 532 (Nicholls FM, 19 June 2012) at [21], following SZHYB v MIMIA [2007] FMCA 311 (Barnes FM, 22 March 2007) at [33], commented that the decision-maker is not required to refer to a specific provision in the domestic law of the relevan…
Ded16 v Minister for Immigration
[2018] FCCA 3074 Para 7

…Indian domestic law. 108. The Tribunal notes that in SZQWP v MIAC [2012] FMCA 532 (Nicholls FM, 19 June 2012) at [21], following SZHYB v MIMIA [2007] FMCA 311 (Barnes FM, 22 March 2007) at [33], commented that the decision-maker is not required to refer to a specific provision in the domestic law of the relevant f…
1517515 (Refugee)
[2016] AATA 4971

…FCR 35 Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 MZZXS v MIBP [2015] FCA 1384 SZHYB v MIMIA [2007] FMCA 311 SZQWP v MIAC [2012] FMCA 532 SZTOG v MIBP [2015] FCCA 180 SZTOX v MIBP [2015] FCAFC 77 SZTQN v MIBP [2015] FCCA 188 V856/00A v MIMA (2001) 114 FCR 408…
SZRDO v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 893 Para 12

…this right is not dependent on a finding that the right has been enacted into domestic law (see authorities: SZHYB v Minister for Immigration & Anor [2007] FMCA 311 per Barnes FM, Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154 at [60] per Stone J and SZHWI v Min…
SZQWP v MIAC
[2012] FMCA 532 Para 6

…I note the Minister’s submissions and reference to authority, in particular SZHYB v Minister for Immigration & Anor [2007] FMCA 311 (“ SZHYB ”). As set out in that case, the fact that the Treaty has not been enacted into domestic law does not, of itself, reveal legal error as the Tribunal is not required to refer…

View all 5 citing cases →

Cases cited in this decision · 22 of 22 shown

SZDXZ v Minister for Immigration and Citizenship
[2008] FCAFC 109 Para 8

…ear of persecution for a Convention reason in Nepal. Credibility is a matter for the Tribunal par excellence : see Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407. While, as McHugh J stated at [67], detailed reasons for such a finding are not required, in this case the Tribunal findings were open to it on the m…
SZHWI v Minister for Immigration
[2006] FMCA 1924 Para 5

…However, as in SZHWI v MIMA [2006] FMCA 1924 at [26], there is a further distinction between the circumstances in SZFKD and this case based on the material before the Tribunal. The Tribunal had before it further and more recent country information than that before the Tribunal in SZFKD (in particular the September…
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004
[2006] HCA 53 Para 3

…situation of the applicant ” but contended that the benchmark applied by his Honour was overly onerous. It was noted that in MIMIA v QAAH of 2004 [2006] HCA 53 at [39], [40] and [46] the majority of the High Court confirmed that there is no onus upon any party to establish an evidentiary point in inquisitorial t…
SZGRA v Minister for Immigration
[2006] FMCA 1097

…V v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 35 SZGRA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1097 SZHWI v Minister for Immigration & Multicultural Affairs [2006] FMCA 1924 V872/00A v Minister for Immigration & Multicultural Affairs (2002) 190 ALR…
SZFBO v Minister for Immigration & Multicultural Affairs
[2006] FCA 291 Para 8

…In any event, as in SZFBO v MIMIA [2006] FCA 291, there was a separate independent basis for the Tribunal decision. Hence, even if the Tribunal did err in its findings in relation to a right to enter and reside in India (and I note that it did not address the issue of whether the applicant had taken all possible…
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCAFC 2 Para 8

…n on the basis of the unaffected finding (see VBAP of 2002 v MIMIA [2005] FCA 965 at [25] and [33] per North J and SZEEU v MIMIA & Anor (2006) 230 ALR 1 at 51 [233] per Allsop J and also see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57] – [62]).…
SZGBY v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCA 35 Para 3

…stinguishing factors which make it unnecessary to determine whether the decision should be followed. First, it is notable that, as in SZGBV v MIMIA [2006] FCA 35, it was no part of the applicant’s case before the Tribunal that he could not enter and reside in India. As in SZGBV , in his protection visa applicati…
SZFKD & Anor v Minister for Immigration & Anor
[2006] FMCA 49 Para 1

…ia. The applicant relied on a decision of Federal Magistrate Smith in relation to a Nepalese protection visa applicant ( SZFKD & Anor v MMIMA [2006] FMCA 49), in which his Honour stated (at [44]): Counsel for the Minister argued that such a right [to enter and reside in India] was found in Art. 7 of a 1950 Treaty…
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 965 Para 8

…isfied that the Court should withhold relief as a matter of discretion on the basis of the unaffected finding (see VBAP of 2002 v MIMIA [2005] FCA 965 at [25] and [33] per North J and SZEEU v MIMIA & Anor (2006) 230 ALR 1 at 51 [233] per Allsop J and also see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 C…
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 94 Para 2

…factual findings of the Tribunal were incorrect, that would not in and of itself, be sufficient to constitute jurisdictional error (see MZWBW v MIMIA [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v MIMIA [2005] FCAFC 8 at [31] and NAAP v MIMIA [2003] FCAFC 76 at [37].…
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003
[2005] FCAFC 73 Para 7

…that there is no positive obligation imposed on the Tribunal to investigate claims (see MIMIA v SGLB (2004) 207 ALR 12 at 43 and MIMIA v VSAF of 2003 [2005] FCAFC 73 at [20]) and that, as Gummow and Hayne JJ made clear in SGLB , while the Tribunal has the power to obtain further information, it does not have an ob…
Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC 8 Para 2

…uld not in and of itself, be sufficient to constitute jurisdictional error (see MZWBW v MIMIA [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v MIMIA [2005] FCAFC 8 at [31] and NAAP v MIMIA [2003] FCAFC 76 at [37].…
Applicant VEAT v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1545 Para 7

…The first respondent submitted, and I accept, that there is no positive obligation imposed on the Tribunal to investigate claims (see MIMIA v SGLB (2004) 207 ALR 12 at 43 and MIMIA v VSAF of 2003 [2005] FCAFC 73 at [20]) and that, as Gummow and Hayne JJ made clear in SGLB , while the Tribunal has the power to obtain…
Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji
[2004] HCA 38

…Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 Minister for Immigration & Multicultural & Indigenous Affairs v Al Khafaji (2004) 208 ALR 201 Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 [2006] HCA 53 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Ministe…
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 459 Para 7

…igate or to consider utilising such permissive statutory powers that might enable it to do so (such as s.427(1)(d)) and also see VCAK of 2002 v MIMIA [2004] FCA 459 at [27]; WAGJ v MIMIA [2002] FCAFC 277 at [21] and [24] – [25] and W389 /01A v MIMA (2002) 125 FCR 407 at [74] – [78].…
NAAP v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCAFC 76 Para 2

…to constitute jurisdictional error (see MZWBW v MIMIA [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v MIMIA [2005] FCAFC 8 at [31] and NAAP v MIMIA [2003] FCAFC 76 at [37].…
Applicant C v Minister for Immigration and Multicultural Affairs
[2001] FCA 1657

…ticultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154 Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 MZWBW v Minister for Immigration & Multicultural & Indi…
Suntharajah v MIMA
[2001] FCA 1391 Para 6

…However in SZFKD Smith FM referred to MIMA v Applicant C (2001) 116 FCR 154 at [62] per Stone J with whom Gray and Lee JJ agreed and WAGH v MIMIA (2003) 131 FCR 269, in finding that the reference to “ a right to enter and reside ” in s.36(3) required a factual finding “ on whether a claimant’s ability to enter a safe…
Re Refugee Review Tribunal; Ex parte Aala
[2000] HCA 57 Para 8

…] per North J and SZEEU v MIMIA & Anor (2006) 230 ALR 1 at 51 [233] per Allsop J and also see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57] – [62]).…
Minister for Immigration and Multicultural Affairs v Thiyagarajah
[2000] HCA 9

…& Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154 Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 NAAP v Minister for Immigration & Multicultural & In…
There is a Full Court decision of the Federal Court, which is WAGJ v Minister for Immigration and Multicultural Affairs
[2002] FCAFC 277 Para 7

…ermissive statutory powers that might enable it to do so (such as s.427(1)(d)) and also see VCAK of 2002 v MIMIA [2004] FCA 459 at [27]; WAGJ v MIMIA [2002] FCAFC 277 at [21] and [24] – [25] and W389 /01A v MIMA (2002) 125 FCR 407 at [74] – [78].…
Migration Act, must be a “legally enforceable” right, as the court found in WAGH v MIMA
[2003] FCAFC 194 Para 6

…However in SZFKD Smith FM referred to MIMA v Applicant C (2001) 116 FCR 154 at [62] per Stone J with whom Gray and Lee JJ agreed and WAGH v MIMIA (2003) 131 FCR 269, in finding that the reference to “ a right to enter and reside ” in s.36(3) required a factual finding “ on whether a claimant’s ability to enter a safe…

Legislation cited in this decision · 1

Migration Act 1958 (Cth)
36 2 mentions (from Para 9)