SZKRR v Minister for Immigration - [2007] FMCA 1709

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKRR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1709

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of China claiming fear of persecution on grounds of political opinion – credibility – allegation of bias – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A,474

Applicant:

SZKRR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1665 of 2007

Judgment of:

Scarlett FM

Hearing date:

2 October 2007

Date of last submission:

2 October 2007

Delivered at:

Sydney

Delivered on:

2 October 2007

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms Sirtes

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $4,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1665 of 2007

SZKRR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

The Applicant is a citizen of the People's Republic of China. She asks the Court to set aside a decision of the Refugee Review Tribunal refusing her a protection visa. She also asks the Court for a declaration that the decision was invalid and contrary to law and she asks the Court that her application for a visa be sent back to a differently constituted Refugee Review Tribunal to be determined in accordance with law.
I have explained to the Applicant that in order to make those orders the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. I am also of the view that even if the Court does make an order sending her application back to the Tribunal the Court has no power to direct that the Tribunal be differently constituted. That is a task for the Principal Member of the Tribunal under s.420 of the Migration Act (see SZEPZ v Minister for Immigration & Multicultural Affairs[1]).
[1] [2007] FCA 107

Background

The background to this matter is that the Applicant arrived in Australia…

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 1709
Decision Date: 2 October 2007

CaseChat Overview and Summary

SZKRR, an applicant, sought judicial review of a decision by the Minister for Immigration, the first respondent, to refuse an application for a visa. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant argued that the decision was legally flawed and sought a quashing of the decision, an order of mandamus compelling the Minister to reconsider the application, and an order of prohibition preventing the Minister from implementing the decision.

The court was required to determine whether the Minister's decision was legally sound, and if not, whether the court should quash the decision, order the Minister to reconsider the application, or prohibit the Minister from implementing the decision. The court considered the relevant statutory provisions, the decision-maker's statutory powers, and the principles of administrative law, including whether the Minister had considered all relevant matters, had failed to consider irrelevant matters, had acted irrationally, or had made an error of law.

The court found that the Minister's decision was legally sound. The court held that the Minister had properly exercised his statutory powers, had considered all relevant matters, had not failed to consider any irrelevant matters, had not acted irrationally, and had not made an error of law. The court held that the applicant had not established any ground upon which the court could interfere with the Minister's decision. The court dismissed the application and ordered the applicant to pay the Minister's costs.

Orders

Orders of the court

The Application is dismissed.

The Applicant is to pay the First Respondent's costs in the sum of $4,700.00.

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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