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SZMZA v MIAC (No 2)

SZMZA v MIAC (No 2)

Case [2008] FMCA 1418 21 October 2008

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZA v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2008] FMCA 1418

MIGRATION – RRT decision – Chinese applicant claiming persecution for attending underground church – Tribunal had regard to applicant’s Church attendances in Australia – effect of s.91R(3) – consideration of applicant’s motives – failure to address the correct question – matter remitted.

Federal Court Rules (Cth), O.62
Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)(c)
Migration Act 1958 (Cth), ss.91R(3), 91R(3)(b), 424A

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26
SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451, [2008] FCAFC 105
SZMDC v Minister for Immigration & Anor [2008] FMCA 1282
SZMZA v Minister for Immigration & Anor [2008] FMCA 702

Applicant:

SZMZA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 471 of 2008

Judgment of:

Smith FM

Hearing dates:

21 May & 18 August 2008

Date for Last Submission:

23 September 2008

Delivered at:

Sydney

Delivered on:

21 October 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr S Free

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 31 January 2008 in matter 071956613.
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 18 December 2007.
The first respondent pay the applicant’s costs as agreed or taxed under r.21.02(2)(c) and O.62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 471 of 2008

SZMZA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This matter has taken a tortuous path at all stages, including while it has been in my docket. The applicant arrived in Australia in May 2006. He was assisted to make a protection visa application which made false claims to fear persecution as a Falun Gong practitioner if he returned to The People’s Republic of China, and this was refused on 28 July 2006. He did not appeal, and was taken into immigration detention in October 2006.
He then wrote to the Minister many letters claiming that he had been repeatedly detained and mistreated over a long period by Chinese authorities, because he attended “an underground church which belonged to the Shouter’s sect”. It is unnecessary for me to recount the details of his claims. Eventually, the Minister allowed him to make a second protection visa application, which was lodged on 16 November 2007 with the assistance of a migration agent. He presented evidence of involvement in a number of Christian activities in Australia, both before and after his detention.
He was interviewed by a delegate of the Minister, who refused the application on 18 December 2007. The delegate…

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 SZMZA v MIAC (No 2)

Details

AGLC: SZMZA v MIAC (No 2) [2008] FMCA 1418
Case: [2008] FMCA 1418
Decision Date: 21 October 2008

CaseChat Overview and Summary

The applicant, SZMZA, brought an application against MIAC (the second respondent) and another entity (the first respondent) in the Federal Court of Australia. The dispute centred around the second respondent's decision on 31 January 2008, pertaining to matter 071956613, which the applicant sought to have quashed, as well as the second respondent's failure to review a decision made by the delegate of the first respondent on 18 December 2007. The applicant argued that the second respondent's decision was flawed and sought a writ of certiorari to quash it and a writ of mandamus to compel the second respondent to properly review the first respondent's decision.

The primary legal issues before the court were whether the second respondent's decision was unlawful or otherwise flawed, justifying the issuance of a writ of certiorari, and whether the second respondent had a duty to review the first respondent's decision, necessitating the issuance of a writ of mandamus. Additionally, the court had to determine the appropriate costs to be awarded under the Federal Court Rules and the Uniform Civil Procedure Rules.

The court found that the second respondent's decision was indeed flawed, as it did not properly consider relevant statutory provisions and failed to exercise its discretion in accordance with the law. Consequently, the court granted the writ of certiorari to quash the decision of 31 January 2008. The court also held that the second respondent had a duty to review the first respondent's decision and ordered the issuance of a writ of mandamus to compel the second respondent to do so. The court further ordered the first respondent to pay the applicant's costs as agreed or taxed under the relevant rules.

In summary, the court quashed the second respondent's decision, compelled the second respondent to review the first respondent's decision, and ordered the first respondent to pay the applicant's costs.

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 31 January 2008 in matter 071956613.

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 18 December 2007.

The first respondent pay the applicant’s costs as agreed or taxed under r.21.02(2)(c) and O.62 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

SZMZA v MIAC (No 2) [2008] FMCA 1418

Most Recent Citation

SZMPJ v MIAC [2008] FMCA 1640

Cases citing this decision · 8 of 8 shown

1838172 (Refugee)
[2023] AATA 3027 Para 18

…18, p.8; UK Home Office, ‘Iran: Christians and Christian converts’, March 2018, pp.5, 29–32. [108] Research Directorate, Immigration and Refugee Board of Canada, ‘Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the governmen…
2119781 (Refugee)
[2023] AATA 1070 Para 3

…] NBKT v MIMA (2006) 156 FCR 419 at [89]; SZKOZ v MIAC [2007] FCA 1798 at [28]–[29]; SZKHD v MIAC [2008] FCA 112 at [31]; SZMZA v MIAC (No 2) [2008] FMCA 1418 at [16]–[17] and SZMPJ v MIAC [2008] FMCA 1640 at [25]–[27]. [4] SZOZT v MIAC [2011] FCA 1245; SZRWG v MIAC [2013] FMCA 53. [5] MIAC v SZJGV (2009) 238 CLR 6…
2017446 (Refugee)
[2023] AATA 1037 Para 11

…] NBKT v MIMA (2006) 156 FCR 419 at [89]; SZKOZ v MIAC [2007] FCA 1798 at [28]–[29]; SZKHD v MIAC [2008] FCA 112 at [31]; SZMZA v MIAC (No 2) [2008] FMCA 1418 at [16]–[17] and SZMPJ v MIAC [2008] FMCA 1640 at [25]–[27]. [5] SZOZT v MIAC [2011] FCA 1245; SZRWG v MIAC [2013] FMCA 53. [6] MIAC v SZJGV (2009) 238 CLR 6…
1910818 (Refugee)
[2022] AATA 5060

…8) 89 FCR 38 SZKHD v MIAC [2008] FCA 112 SZKOZ v MIAC [2007] FCA 1798 SZMPJ v MIAC [2008] FMCA 1640 SZMZA v MIAC (No 2) [2008] FMCA 1418 SZOZT v MIAC [2011] FCA 1245 SZRWG v MIAC [2013] FMCA 53 SZVYD v MIBP [2019] FCA 648 VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) Welivita v MIEA (Federal Court of Austra…
1514823 (Refugee)
[2018] AATA 3846 Para 1

…08) at [31]. [46] See SZMZA v MIAC (No.2) [2008] FMCA 1418 (Smith FM, 21 October 2008) at [16]-[17], finding an erroneous application of s.91R(3) where the Tribunal took account of conduct in Australia where it was left in doubt about the applicant’s motives for engaging in the relevant activities. See also SZMPJ v…
1508780 (Refugee)
[2018] AATA 3214 Para 4

…-[17], finding an erroneous application of s.91R(3) where the Tribunal took account of conduct in Australia where it was left in doubt about the applicant’s motives for engaging in the relevant activities. See also SZMPJ v MIAC [2008] FMCA 1640 (Smith FM, 17 December 2008) at [25]-[27]. In this case the Tribunal ha…
1506327 (Refugee)
[2016] AATA 4872 Para 18

…of strengthening his claim. The onus is on the applicant to satisfy the Tribunal as to the motivation for their conduct.[1] [1] SZMZA v MIAC (No. 2) [2008] FMCA 1418, Smith FM at [16] – [17]…
SZMPJ v MIAC
[2008] FMCA 1640 Para 7

…eft in doubt as to the applicant’s motives and takes the conduct into consideration (see SZMZA v Minister for Immigration & Anor (No.2) [2008] FMCA 1418). As I shall explain below, the Tribunal appears to have fallen into this error in the present case.…

View all 8 citing cases →

Cases cited in this decision · 5 of 5 shown

MZYJO v Minister for Immigration
[2011] FMCA 25 Para 19

…e, or if it had no material effect on the Tribunal’s operative conclusions (cf. SZJGV at [31], and SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28], [55]‑[59], [91]).…
SZMDC v Minister for Immigration & Anor
[2008] FMCA 1282 Para 3

…As I explained in SZMDC v Minister for Immigration & Anor [2008] FMCA 1282 at [29]‑[31], SZJGV appears to accept that a Tribunal’s reliance on an applicant’s conduct in Australia without a finding in terms of s.91R(3)(b) might not always give rise to jurisdictional error, if the Court is satisfied that the Tribunal…
SZJGV v Minister for Immigration & Citizenship
[2008] FCAFC 105 Para 12

…from the recent examination of s.91R(3) of the Migration Act by the Full Court in SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451, [2008] FCAFC 105. I canvassed this issue with counsel for the Minister at the hearing. However, it had not been clearly raised by any of the applicant’s grounds of re…
SZMZA v Minister for Immigration
[2008] FMCA 702 Para 5

…on by the Court, since the applicant was still in detention. However, in circumstances which I explained in SZMZA v Minister for Immigration & Anor [2008] FMCA 702, I adjourned the hearing to 18 August 2008, to allow the applicant to obtain advice on whether he should proceed with his application to the Court, in…
SZBYR v Minister for Immigration and Citizenship
[2007] HCA 26 Para 19

…aterial effect on the Tribunal’s operative conclusions (cf. SZJGV at [31], and SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28], [55]‑[59], [91]).…

Legislation cited in this decision · 2

Migration Act 1958 (Cth)
424A, 91R(3), 91R(3)(b) 4 mentions (from Para 3)
Federal Magistrates Court Rules 2001 (Cth)
21.02(2)(c) 1 mention