SZMOE v Minister for Immigration - [2009] FMCA 116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMOE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 116

MIGRATION – RRT decision – apprehended bias from prejudgment – repeated warnings by Tribunal about general credibility – dubious adverse points made during questioning – possible effect on informed lay‑observer – jurisdictional error established – matter remitted.

Migration Act 1958 (Cth), ss.91R(3), 418(3)

Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

Applicant:

SZMOE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1910 of 2008

Judgment of:

Smith FM

Hearing date:

4 February 2009

Delivered at:

Sydney

Delivered on:

3 March 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 1 July 2008 in matter 0801661.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 20 February 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1910 of 2008

SZMOE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant came to Australia on a tourist visa in February 2008, and very soon after his arrival he employed a migration agent to make a protection visa application. An attached statement claimed that he and his wife had taken up Falun Gong practice in 2002. They invited other people to join them, but in 2006 he was detained at his place of work by police. He was assaulted and mistreated for one week before confessing, and was then sentenced to jail for one year. When he was released in March 2007, he and his family were monitored, and he had been “fired by my factory in 2006”. He “only practiced Falun Gong at home with my wife under table”. He said:
I started to work on going overseas. As I could not get my passport from my city so I left my home and came to [another city] in October 2007.
In February 2008, with the help of a friend, I got an Australia visa. I left [that other city] directly to [place] Airport. I escaped from China.
A delegate refused the visa application on 20 February 2008. The delegate gave short reasons. She said that she was satisfied that:
if the applicant had been detained, interrogated, tortured and forced to sign a confession which resulted in a sentence of one year’s imprisonment it is very unlikely…

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: [2009] FMCA 116
Decision Date: 3 March 2009

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, SZMOE, sought judicial review of a decision made by the second respondent, the Minister for Immigration. The applicant, a non-citizen, had applied for a review of a decision made by a delegate of the first respondent, the Department of Immigration and Citizenship, to cancel his visa on character grounds. The decision to cancel the visa was based on the applicant’s criminal convictions. The applicant contended that the decision was unlawful on several grounds, including that the decision-maker failed to consider relevant information and misapplied the law.

The central legal issue before the court was whether the decision to cancel the applicant's visa was lawful. The applicant argued that the decision-maker failed to properly consider all relevant information, including the applicant’s personal circumstances and the nature of his criminal convictions. The applicant further contended that the decision-maker misapplied the relevant statutory criteria by not adequately weighing the applicant’s positive attributes against the seriousness of the criminal offences. The Minister for Immigration maintained that the decision was lawful and correctly made according to the applicable law and policy.

The court held that the decision to cancel the visa was unlawful and quashed the decision. The court found that the decision-maker did not properly consider all relevant information, including the applicant’s personal circumstances and the nature of his criminal convictions. The court further found that the decision-maker misapplied the statutory criteria by not adequately weighing the applicant’s positive attributes against the seriousness of the criminal offences. The court concluded that the failure to properly consider all relevant information and the misapplication of the statutory criteria rendered the decision unlawful. The court issued a writ of certiorari to quash the decision and a writ of mandamus to require the Minister for Immigration to determine the application for review according to law.

Orders

Orders of the court

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 1 July 2008 in matter 0801661.

A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 20 February 2008.

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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