SZKDO v Minister for Immigration & Citizenship

Case [2008] FCA 152

FEDERAL COURT OF AUSTRALIA

SZKDO v Minister for Immigration & Citizenship [2008] FCA 152

SZKDO v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2212 OF 2007

JACOBSON J
25 FEBRUARY 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2212 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKDO
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

25 FEBRUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act, the appeal be dismissed.

2.Pursuant to Order 62, rule 4(2)(c) of the Federal Court Rules, the appellant pay the first respondent’s costs of the appeal fixed in the amount of $1,045.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2212 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKDO
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

JACOBSON J

DATE:

25 FEBRUARY 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an appeal from a judgment and orders of Nicholls FM made on 26 October 2007.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal dated 29 November 2006. 

  2. The Tribunal affirmed a decision of a delegate of the Minister to refuse an application for a protection visa.  The appellant claimed to have a well-founded fear of persecution in Indonesia on the grounds of her Chinese ethnicity. 

  3. The Federal Magistrate rejected three grounds of review sought to be agitated before him. 

  4. When the matter was called on for hearing this morning at 10.15 there was no appearance by the appellant.  I stood the matter down in the list for approximately ten minutes in case the appellant was unavoidably detained.  It is now nearly 10:35 and there is still no appearance. 

  5. Ms Mafessanti who appears for the Minister has asked me to exercise my powers under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to make an order that the appeal be dismissed for failure of the appellant to attend this hearing.

  6. I am satisfied that the appellant was duly notified at the address stated in her notice of appeal as her address for service that the matter was listed before me this morning for hearing.  Since there is no appearance, it is my view that I should exercise my powers to dismiss the appeal. 

  7. Accordingly, I will order that the appeal be dismissed.

  8. I will also order the appellant to pay the first respondent’s costs of the appeal fixed in the amount of $1,045.00.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:
Dated:        26 February 2008

The Appellant did not appear.
Solicitor for the Respondent: Clayton Utz
Date of Hearing: 25 February 2008
Date of Judgment: 25 February 2008
Details
AGLC
SZKDO v Minister for Immigration & Citizenship [2008] FCA 152
Case
[2008] FCA 152
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the appellant SZKDO challenged the Minister for Immigration & Citizenship's decision to cancel his visa. The appellant, a citizen of Vietnam, had entered Australia on a student visa and subsequently applied for a partner visa, which was approved. However, the respondent later cancelled the visa based on concerns about the authenticity of the relationship. The appellant argued that the decision was unreasonable and that the respondent had not properly considered all the evidence.

The central legal issue in this case was whether the respondent's decision to cancel the visa was unreasonable under the Migration Act. The court had to determine whether the respondent had acted irrationally, failed to consider relevant factors, or acted in a manner that was unjust or capricious. Additionally, the court considered whether the respondent had properly exercised the discretion afforded by the Act in cancelling the visa.

The court found that the respondent had exercised the discretion appropriately and had not acted unreasonably. The evidence presented by the appellant did not sufficiently rebut the respondent's concerns about the authenticity of the relationship. The court held that the respondent had followed a lawful process and had not failed to consider relevant factors. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act, the appeal be dismissed.

2. Pursuant to Order 62, rule 4(2)(c) of the Federal Court Rules, the appellant pay the first respondent’s costs of the appeal fixed in the amount of $1,045.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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