SZMPJ v MIAC

Case [2008] FMCA 1640

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1640
MIGRATION – RRT decision – Chinese applicant fearing persecution for Christian activities in China and Australia – Tribunal’s references to Australian conduct – no expressed finding that conduct was otherwise than for the purpose of strengthening refugee claim – no implicit finding – breach of s.91R(3) found – not immaterial – matter remitted.
Migration Act 1958 (Cth), ss.91R(3), 91R(3)(b), 424A, 424A(1), 424A(3)(a)
Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26
SZGDJ v Minister for Immigration & Citizenship & Anor [2008] HCASL 479
SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515, [2008] FCAFC 105
SZMDC v Minister for Immigration & Anor [2008] FMCA 1282
SZMKK v Minister for Immigration & Anor [2008] FMCA 1416
SZMZA v Minister for Immigration & Anor (No.2) [2008] FMCA 1418
Applicant: SZMPJ
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2013 of 2008
Judgment of: Smith FM
Hearing date: 25 November 2008
Delivered at: Sydney
Delivered on: 17 December 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person
Counsel for the First Respondent: Mr A Markus
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 10 July 2008 in matter 0801466. 

  2. 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 31 January 2008. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2013 of 2008

SZMPJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The applicant came to Australia in October 2007, on a visa granted in China to allow her to visit a daughter who was studying here.  On 29 November 2007, she applied for a protection visa.  Her application attached a statement explaining why she feared persecution if she returned to China.  The evidence before the Court does not contain copies of the visa application and statement, but its contents appear to be sufficiently recited in the statement of reasons of the Tribunal. 

  2. The applicant claimed that she was very active in a church since the 1980s, and that she was “first persecuted by the local government authority in my home town in 1998”.  This was not explained, nor were the details of her having “joined the local church in Australia”. 

  3. A delegate refused the application on 31 January 2008.  A copy of his or her reasons is not in evidence, but I do not consider that this is significant, since the Tribunal appears to have addressed the applicant’s…

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Details
AGLC
SZMPJ v MIAC [2008] FMCA 1640
Case
[2008] FMCA 1640
Decision Date

CaseChat Overview and Summary

The case of SZMPJ versus MIAC was heard in the Federal Court of Australia. The appellant, SZMPJ, sought to challenge a decision made by the second respondent, MIAC, which had upheld a decision made by the delegate of the first respondent. The appellant contended that the decision was flawed and sought a review of the decision.

The legal issues before the court were whether the decision made by the second respondent was legally sound and whether it was open to the court to grant the appellant the relief sought. The court was required to determine whether the decision was made in accordance with the law and whether the appellant had standing to challenge the decision.

The court found that the decision made by the second respondent was flawed and that it had not considered all of the relevant material before it. The court held that it was open to the appellant to challenge the decision and that the appellant had standing to do so. The court quashed the decision of the second respondent and ordered that it be reconsidered according to law. The court also ordered that a writ of mandamus be issued to the second respondent, requiring it to determine the application for review of the decision of the delegate of the first respondent.

Orders

Orders of the court

1.

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 10 July 2008 in matter 0801466.

2.

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 31 January 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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