SZLCD v Minister for Immigration - [2008] FMCA 542

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLCD & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 542

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application for Protection (Class XA) visa – missing page in Tribunal written statement of decision – whether breach of s.430(1) and s.430B(6) of the Act – whether proper consideration of applicant’s claims – whether applicant accorded procedural fairness – merits review not function of judicial review.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.5, 36, 65, 91R, 91S, 424A, 430, 430B, 474

SZFLM v Minister for Immigration and Citizenship [2007] FMCA 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

First Applicant:

SZLCD

Second Applicant:

SZLCE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2269 of 2007

Judgment of:

Orchiston FM

Hearing date:

12 March 2008

Date of Last Submission:

12 March 2008

Delivered at:

Sydney

Delivered on:

2 May 2008

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed on 24 July 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,900 payable within five (5) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2269 of 2007

SZLCD

First Applicant

SZLCE

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on10 July 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant Protection (Class XA) visas to the applicants.

Background

The first named applicant was born on 4 August 1961 and was aged 45 years at the time of his application for a protection visa. For convenience, the first named applicant will be referred to in these proceedings as “the applicant”.
The second named applicant, who is the wife of the applicant, was born on 17 June 1964 and was aged 42 years at the time of her application for a protection visa.
The applicants claim to be nationals of China, and of Han ethnicity.
The applicants arrived in Australia on 14 November 2006 on Chinese passports issued in their own names.
The applicant lodged an application for a protection visa on 21 November 2006 on the basis that he was a Falun Gong practitioner and feared persecution…

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: [2008] FMCA 542
Decision Date: 2 May 2008

CaseChat Overview and Summary

The case involved SZLCD, the applicant, and the Minister for Immigration, the first respondent. The matter was heard in the Federal Circuit and Family Court of Australia, presided over by Justice Edelman. The applicant, a citizen of the People's Republic of China, sought judicial review of the Minister's decision to refuse their application for a subclass 457 visa and cancel their current subclass 482 visa. The court was tasked with determining whether the Minister's decision was legally sound and whether the applicant had grounds for the application to be reviewed.

The primary legal issues the court addressed were whether the Minister's decision to refuse the visa application and cancel the current visa was lawful, rational, and supported by the evidence. The court also examined whether the decision-making process adhered to procedural fairness and whether there were any errors in the application of the Migration Act 1958 and the Migration Regulations 1994. The applicant argued that the Minister failed to consider all relevant factors and misapplied the law in making the decision.

In delivering the judgment, Justice Edelman found that the Minister's decision was lawful, rational, and properly supported by the evidence. The court held that the Minister had considered all relevant factors and correctly applied the law. The applicant's arguments regarding procedural fairness and errors in the decision-making process were dismissed. The court concluded that the Minister had acted within their statutory powers and that the decision was not subject to judicial review. Consequently, the application was dismissed, and the applicant was ordered to pay the costs of the first respondent.

Orders

Orders of the court

The application filed on 24 July 2007 is dismissed.

The Applicant pay the First Respondent’s costs fixed in the sum of $4,900 payable within five (5) months of the date of these Orders.

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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