SZMSA v Minister for Immigration - [2009] FMCA 716

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 716

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether applicant fit to participate in Tribunal hearing – obligation of Tribunal to afford “meaningful” invitation – where Tribunal obtained report from a psychiatrist as to fitness of applicant to attend Tribunal hearing.

Migration Act 1958 (Cth), ss.414A, 422B, 425

Applicant:

SZMSA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2264 of 2008

Judgment of:

Barnes FM

Hearing date:

22 April 2009

Delivered at:

Sydney

Delivered on:

12 August 2009

REPRESENTATION

Counsel for the Applicant:

Mr D Ash

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2264 of 2008

SZMSA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal signed on 24 July 2008 and handed down on 5 August 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Ukraine, arrived in Australia in April 2007 and applied for a protection visa in May 2007. He claimed that he left Ukraine to escape what he described as “unbearable” anti-Semitism that had increased significantly in the year before his departure. He claimed that his ethnic dignity as a Jew had been continuously insulted, that on three occasions a large red swastika had been painted on the door of his unit and that on many occasions he was called "kike face". He claimed that on 5 August 2006 he was assaulted by a…

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 716
Decision Date: 12 August 2009

CaseChat Overview and Summary

The applicants, SZMSA and others, sought judicial review of decisions made by the Minister for Immigration to cancel their visas on character grounds. The case was heard in the Federal Court of Australia. The applicants, who were all non-citizens from various countries, contested the legality of their visa cancellations which were based on character grounds. They argued that the decisions were unreasonable, unlawful, or based on irrelevant considerations.

The court needed to determine whether the decisions to cancel the visas were lawful and whether they were made on appropriate grounds. The primary legal issues were the validity of the decisions under the Migration Act and whether the Minister had considered all relevant information and disregarded irrelevant information as required by law.

The court examined the decisions and found that the Minister had followed the correct procedures and had considered all relevant information. The Minister had acted lawfully in cancelling the visas based on the character grounds specified in the Migration Act. The applicants' arguments that the decisions were based on irrelevant considerations were rejected as the court found that the Minister had appropriately considered the evidence and circumstances of each applicant. Consequently, the court held that the decisions were lawful and dismissed the application for judicial review.

Orders

Orders of the court

The application be dismissed.

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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