SZLLO & Anor v Minister for Immigration - [2008] FMCA 469

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLLO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 469

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicants in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZLLO” and “SZLLP”.

Migration Act 1958 (Cth), s.91X, 424A, 424B

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 301
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110
Tobasi v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 322

First Applicant:

SZLLO

Second Applicant:

SZLLP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3127 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

6 February 2008

Delivered at:

Sydney

Delivered on:

24 April 2008

REPRESENTATION

Applicants:

The applicants appeared in person with the assistance of a Mandarin interpreter.

Solicitors for the Respondents:

Mr M Snell of Sparke Helmore

ORDERS

The application filed on 9 October 2007 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3127 of 2007

SZLLO

First Applicant

And

SZLLP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicants are a married couple and have been referred to as “the applicant” and “the applicant wife” in the Refugee Review Tribunal’s decision. These terms will also be used in this judgment.
The applicant was born in 1961 in Fujian province, the People’s Republic of China. He claims to be of Han ethnicity, a Christian and to have completed nine years of education. He left China using his own passport issued in 2004 and his visa to Australia was issued in Guangzhou on 27 November 2006.
The applicant claims that he married in 1986 and has four children. He claims that local tradition required him to have a son and so he paid a penalty to the government for violating China’s “One Child Policy” which left him in debt for many years. The applicant’s eldest daughter is currently studying in Australia. The have two other daughters and a son who remain in China.
The applicant claims that in February 2003 he relocated to Jiuru Village in Guangdong province to run “Shikou Brick Factory”. He also claims he established a Bible Study Group at the factory in June 2003. He claims that the Public Security Bureau (PSB) paid “special attention” to this group. The applicant held a Christmas party at the end of December 2005 at the brick factory where he…

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 SZLLO & Anor v Minister for Immigration

Details

AGLC: SZLLO & Anor v Minister for Immigration [2008] FMCA 469
Case: [2008] FMCA 469
Decision Date: 24 April 2008

CaseChat Overview and Summary

The case before the Federal Court involved applicants seeking judicial review of a decision made by the Minister for Immigration. The applicants challenged the Minister's decision to cancel their visas and order their removal from Australia on the grounds that it was unreasonable. The applicants argued that there were procedural errors in the decision-making process and that the decision was not based on relevant considerations.

The court had to determine whether there were procedural errors in the decision-making process and whether the decision was based on relevant considerations. The court also had to consider whether the Minister's decision was unreasonable. In determining these issues, the court had to examine the relevant legislation and case law.

The court found that there were no procedural errors in the decision-making process and that the decision was based on relevant considerations. The court held that the Minister was entitled to consider the applicants' criminal history and that the decision to cancel their visas and order their removal was not unreasonable. The court found that the Minister had acted within his powers and that the decision was lawful. As a result, the application for judicial review was dismissed and the applicants were ordered to pay the Minister's costs and disbursements.

Orders

Orders of the court

The application filed on 9 October 2007 is dismissed.

The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

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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