SZJBE v Minister for Immigration - [2006] FMCA 1499

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1499

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of the Chinese one child policy – interlocutory dismissal of show cause application – no arguable case disclosed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A

Minister for Immigration v Al Shamry (2002) 110 FCR 27
SAAP v Minister for Immigration [2005] HCA 24
SZECD v Minister for Immigration [2006] FCA 31
SZFBJ v Minister for Immigration FMCA 1472
SZGNY v Minister for Immigration [2006] FMCA 1142

Applicant:

SZJBE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1932 of 2006

Judgment of:

Driver FM

Hearing date:

9 October 2006

Delivered at:

Sydney

Delivered on:

9 October 2006

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Mr A Carter
Sparke Helmore

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth) in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1932 of 2006

SZJBE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was made on 5 June 2006. The applicant sought review of it on 12 July 2006. In that application he asserted notification of the RRT decision on 29 June 2006. On that basis I find that the application was made within time. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution because of the Chinese one child policy. The background to the applicant's protection visa claims and the RRT decision on them are set out in paragraphs 2 through to 5 of the Minister's written submissions filed on 4 October 2006. I adopt those paragraphs as background for the purposes of this judgment:
The applicant claimed that he farmed a plot from which he earned 1,200 RMB per month which was insufficient to support his family. He claimed that under the one child policy, being a farming family, his family were allowed only two children. However, his wife became pregnant with a third child. She hid most of the time in the house and did not emerge until after the birth in 2004. He claimed that the authorities fined them 30,000 RMB which they were unable to pay, and the birth control authorities came to their home, damaged and stole property. In June…

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 SZJBE v Minister for Immigration

Details

AGLC: SZJBE v Minister for Immigration [2006] FMCA 1499
Case: [2006] FMCA 1499
Decision Date: 9 October 2006

CaseChat Overview and Summary

The applicant, SZJBE, a Chinese national, sought judicial review of the Refugee Review Tribunal's (RRT) decision to uphold the Minister for Immigration's refusal of his application for a protection visa. The applicant claimed persecution due to the Chinese one-child policy, alleging that his family was fined and their property damaged for having a third child. The RRT found his claims implausible and inconsistent, leading to the refusal of his visa application. The Federal Magistrates Court was tasked with reviewing whether the RRT's decision was legally sound and if the applicant's claims were credible.

The primary legal issue before the court was whether the RRT's decision was flawed in law, specifically if the Tribunal failed to comply with statutory requirements or made errors in assessing the applicant's credibility. The applicant argued that the RRT did not sufficiently refer to independent information and failed to notify him of the evidence it intended to rely upon, which he claimed breached statutory obligations. The court needed to determine if these arguments were valid and if they constituted arguable grounds for overturning the RRT's decision.

The Federal Magistrate, Driver FM, dismissed the application, finding that the applicant had not demonstrated an arguable case. The court examined each of the applicant's grounds for review. It found that the allegations of bias and breaches of statutory obligations under sections 91R and 424A of the Migration Act were not supported by evidence and did not reveal any jurisdictional error. The court held that the RRT's decision was based on credible findings that the applicant's claims were inconsistent and implausible, which were open to the Tribunal. The court concluded that the applicant's arguments did not present an arguable case for review, and therefore, the application was dismissed.

The court ordered the applicant to pay the Minister's costs of the application in the sum of $2,500, in accordance with the Federal Magistrates Court Rules. The dismissal of the application and the imposition of costs were based on the court's finding that the applicant had not demonstrated a valid legal basis for overturning the RRT's decision.

Orders