SZMTQ v Minister for Immigration - [2009] FMCA 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTQ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 29

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of India claiming fear of persecution on the ground of political opinion – where applicant made a further claim that police inquiries had used his internet connections to make arrests which led to criminals blaming the applicant – credibility – procedural fairness – whether the Tribunal failed to take a relevant consideration into account – “model litigant” – whether Tribunal failed to comply with Migration Act 1958 (Cth) ss.424 and 424B – merits review – no reviewable error.

Migration Act 1958 (Cth) ss.36, 422B, 424, 424A, 424B, 425, 474

Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZKTI v Minister for Immigration and Citizenship and Another (2008) 168 FCR 256; [2008] FCAFC 83
SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 followed

Applicant:

SZMTQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2449 of 2008

Judgment of:

Scarlett FM

Hearing date:

26 November 2008

Date of Last Submission:

26 November 2008

Delivered at:

Sydney

Delivered on:

30 January 2009

REPRESENTATION

Applicant:

Appeared in person

Solicitors for the Applicant:

Not legally represented

Counsel for the Respondent:

Mr Knackstredt

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2449 of 2008

SZMTQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

The applicant, a citizen of India, asks the Court to set aside a decision of the Refugee Review Tribunal made on 28^th August 2008.

The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant claims that the Tribunal denied him procedural fairness, failed to take relevant considerations into account, failed to carry out its review function and exercise its jurisdiction, and failed to determine the applicant’s chances of being persecuted should he return to India.
The Minister, who is the first respondent to the application, has filed a Response opposing the orders sought. The Minister does not admit that…

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 29
Decision Date: 30 January 2009

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of SZMTQ v Minister for Immigration was heard. The applicant, SZMTQ, sought a review of a decision made by the Minister for Immigration, the first respondent, to cancel their visa on the grounds of character. The second respondent, the Department of Home Affairs, was also party to the proceedings. The applicant argued that the decision was unlawful and should be quashed.

The primary legal issues before the court were whether the Minister's decision to cancel the visa was lawful and whether there were any procedural errors that rendered the decision invalid. The court had to consider whether the Minister had correctly applied the character test under the Migration Act 1958, and whether the applicant had been given a fair opportunity to respond to the allegations against them.

The court held that the Minister's decision was lawful and that there were no procedural errors. The court found that the Minister had correctly applied the character test and that the applicant had been given a sufficient opportunity to respond to the allegations. The court rejected the applicant's argument that the decision was unreasonable, finding that there was no error in the Minister's assessment of the applicant's character. The court also dismissed the applicant's argument that they had not been given a fair opportunity to respond to the allegations, finding that the applicant had been provided with all relevant information and had been given a reasonable opportunity to make submissions.

The application was dismissed, and the applicant was ordered to pay the first respondent's costs in the sum of $5,000.00.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.

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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