SZMJT v Minister for Immigration - [2008] FMCA 1465

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJT v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1465

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424AA of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was biased.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424AA; 424AA(b); 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358
SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant:

SZMJT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1615 of 2008

Judgment of:

Emmett FM

Hearing date:

8 October 2008

Date of last submission:

8 October 2008

Delivered at:

Sydney

Delivered on:

24 October 2008

REPRESENTATION

Applicant appearing on her own behalf

Counsel for the Respondent:

Ms S. Sirtes

Solicitors for the Respondent:

Mr P. Snell, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1615 of 2008

SZMJT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 May 2008 and handed down on 27 May 2008.
The applicant claims to be from the People’s Republic of China (“China”) and is married to a man who previously operated a petrol station in China (“the Applicant”).
The Applicant arrived in Australia on 9 August 2007 having departed illegally from Fuzhou on a passport issued in a false name and a visitor’s visa issued on 12 July 2007.
On 21 September 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 18 December 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 17 January 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 15 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

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 SZMJT v Minister for Immigration

Details

AGLC: SZMJT v Minister for Immigration [2008] FMCA 1465
Case: [2008] FMCA 1465
Decision Date: 24 October 2008

CaseChat Overview and Summary

The applicant, SZMJT, a national of the People’s Republic of China, sought judicial review of a decision by the Refugee Review Tribunal dated 15 May 2008, which affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant her a protection (Class XA) visa under the Migration Act 1958 (Cth). The applicant claimed to fear persecution by the Chinese authorities, including the Public Security Bureau, due to her husband's arrest and detention for protesting against unfair treatment by corrupt Chinese officials. The delegate had refused her application for a protection visa, finding her claims unsubstantiated and her fear of persecution not well-founded. The Tribunal upheld the delegate's decision, finding the applicant's claims to be fabricated and her evidence not credible.

The legal issues before the court were whether the Tribunal's decision was affected by jurisdictional error, specifically whether the Tribunal complied with its obligations under sections 424AA and 424A of the Migration Act, and whether the Tribunal was biased. The applicant argued that the Tribunal failed to ensure she understood her right to seek additional time to comment on information, failed to genuinely comply with its obligations under sections 424AA(b) and 424A(1), and failed to consider her evidence impartially and properly.

The court found that the Tribunal had properly put to the applicant the information from her son’s student visa application and her own visitor visa application, inviting her to comment on or respond to it, and advising her that she could seek additional time to comment on or respond to the information. The Tribunal also considered whether to adjourn the hearing to allow the applicant additional time to respond, but concluded that it was reasonable to proceed with its review. The court held that the Tribunal's findings and conclusions were open to it on the evidence and material before it and for which it provided reasons, and that there was no evidence of bias on the part of the Tribunal.

Accordingly, the court dismissed the application for judicial review, finding that the Tribunal's decision was not affected by jurisdictional error and that the applicant's grounds for review did not establish sufficient error to warrant interference by the court. The court also found that the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The proceeding before the court was dismissed with costs.

Orders