SZMDJ v Minister for Immigration - [2008] FMCA 1298

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1298

MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Roman Catholic – disbelieved by Tribunal – no breach of ss.424A or 424AA established – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA, 425

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270
SZMCB v Minister for Immigration [2008] FMCA 951

Applicant:

SZMDJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 902 of 2008

Judgment of:

Smith FM

Hearing date:

8 September 2008

Delivered at:

Sydney

Delivered on:

8 September 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 902 of 2008

SZMDJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia on a student visa with her son in May 2006. On 12 July 2007 she, but not her son, lodged an application for a protection visa assisted by a migration agent Priscilla Yu. A typed statement set out a history upon which she claimed to fear persecution if she returned to the People's Republic of China.
She said that in July 2004 a friend in her village introduced her to a doctor who was a “devote Catholic and a member of Roman Catholic Underground Church”. The doctor treated her father, and he “got recovery miraculously”. The applicant was deeply moved by this, and by the actions of the kind Catholics, and she attended gatherings of the Church. At Easter 2005, she was baptised. After this, she assisted her friend to organise a secret group gathering in her home village which grew to 20 members.
The applicant then came to Australia with her son. She actively participated in religious activities at Catholic churches in Flemington and Lidcombe. She also kept in touch with her friend and the doctor secretly, and provided them with “overseas religious promotion materials in order to support their underground religious activities”. She also said that she “organised a special Bible study group” at her home in Australia for young people who were currently studying in Australia. She said:
I invited experienced Catholics to spread gospel to those young people; and I also organised them to send religious promotions material back to their families or friends in China.
She said that she gave the doctor a large sum of money from selling some property in China, so that he could build a church in a remote village. However, the secret gathering group in her village was suddenly discovered by the Public…

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 1298
Decision Date: 8 September 2008

CaseChat Overview and Summary

SZMDJ, an individual from a non-English speaking country, sought judicial review of a decision by the Minister for Immigration to refuse their application for a bridging visa. The case was heard in the Federal Court of Australia. The applicant argued that the Minister's decision was unreasonable and that the Minister had failed to consider relevant material, including their personal circumstances and their children's education.

The legal issues that the court was required to decide were whether the Minister's decision was unreasonable and whether the Minister had failed to consider relevant material. The court considered whether the Minister had taken into account all relevant considerations in making the decision, including the applicant's personal circumstances, and whether the decision was based on a rational and logical process. The court also considered whether the Minister had failed to consider relevant material, including the applicant's personal circumstances and their children's education.

The court found that the Minister's decision was not unreasonable and that the Minister had considered all relevant material. The court held that the Minister had properly exercised their discretion in considering the applicant's personal circumstances and that the decision was based on a rational and logical process. The court also found that the Minister had considered the relevant material, including the applicant's personal circumstances and their children's education. The court held that the applicant had not demonstrated that the decision was unreasonable or that the Minister had failed to consider relevant material.

The application for judicial review was dismissed, and the applicant was ordered to pay the Minister's costs in the sum of $5,000.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $5,000.

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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