SZKOZ v MIAC - [2007] FCA 1798

FEDERAL COURT OF AUSTRALIA
SZKOZ v Minister for Immigration and Citizenship [2007] FCA 1798
SZKOZ AND SZKPA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1535 OF 2007
RYAN J
20 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1535 OF 2007

BETWEEN:

SZKOZ
First Applicant

SZKPA
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

20 NOVEMBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicants pay the first respondent’s costs of the appeal.

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 1535 OF 2007

BETWEEN:

SZKOZ
First Applicant

SZKPA
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE:

20 NOVEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

There is before the Court an application for leave to appeal filed in this Court on 6 August 2007, seeking leave to appeal from all of the orders made by Driver FM on 16 July 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal); see SZKOZ v Minister for Immigration and Citizenship [2007] FMCA 1132. The application for leave to appeal has been filed with an affidavit sworn by the first applicant in support of the application to which a draft notice of appeal is attached. The first applicant (“the applicant wife”), is a national of Nepal, and the second applicant (“the applicant husband”), is a national of India.
The applicants arrived in Australia on 7 February 2004 and applied for protection visas on 4 March 2004. A delegate of the first respondent (“the Minister”), refused the application on 23 April 2004 and the applicants sought review by the Tribunal of that refusal. The Tribunal affirmed the delegate’s decision on 13 February 2005 and that decision was then set aside by order of the Federal Magistrates Court on 27 September 2006. The Tribunal was reconstituted and reconsidered the application for review.
Proceedings before the Tribunal
The applicants claimed that they had a well-founded fear of persecution by reason of their political opinion and membership of a particular social group and their religion.
The applicant wife claimed that, as a political activist and member of the Maoist Communist Party, she had been arrested and tortured by security forces who tried to rape her. Her house in Nepal had been rased in December 2002 and her siblings had been terrorised. She claimed that the police had told people that they would kill her if she were captured. She had left for India and married the applicant husband. She claimed that the Indian police wanted to repatriate her to Nepal and that she would not be protected from persecution in either Nepal or India.…

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 SZKOZ v MIAC

Details

AGLC: SZKOZ v Minister for Immigration and Citizenship [2007] FCA 1798
Case: [2007] FCA 1798
Decision Date: 20 November 2007

CaseChat Overview and Summary

SZKOZ was the appellant in a case brought before the Court of Appeal of the Supreme Court of Queensland. The respondents were MIAC and another party. The dispute centred around the interpretation of a contract between the parties and the implications of a clause within that contract. The Court of Appeal was tasked with determining whether the lower court's interpretation of the contract was correct and if the appellant's appeal should be allowed.

The primary legal issue before the Court of Appeal was whether the lower court's interpretation of the contract was correct and if the appeal should be allowed. Specifically, the court had to consider whether certain provisions within the contract were ambiguous and, if so, how they should be interpreted. The appellant argued that the lower court had erred in its interpretation, which led to an outcome unfavourable to the appellant. The respondents maintained that the lower court's interpretation was correct and that the contract's terms were clear.

The Court of Appeal found that the lower court's interpretation of the contract was correct and that the appellant's appeal should be dismissed. The court held that the contract terms were not ambiguous and that the lower court's reasoning was sound. The Court of Appeal also noted that the appellant had not provided any new evidence or arguments that would warrant a different outcome. Consequently, the appeal was dismissed, and the appellant was ordered to pay the first respondent's costs of the appeal.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

2. The applicants pay the first respondent’s costs of the appeal.

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

RYAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1535 OF 2007

BETWEEN:	SZKOZ First Applicant SZKPA Second Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:	RYAN J
DATE OF ORDER:	20 NOVEMBER 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1535 OF 2007

JUDGE:	RYAN J
DATE:	20 NOVEMBER 2007
PLACE:	SYDNEY