SZNFP v Minister for Immigration - [2009] FMCA 305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 305

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision refusing to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China claiming fear of persecution by local Municipal Government and police as a result of protesting against taxes and levies applied to businesses – credibility – no reviewable error.

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

SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 referred to
SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751 referred to
SZLOJ v Minister for Immigration & Citizenship [2008] FCA 1693 referred to

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18] referred to

SZLWI v The Minister for Immigration & Citizenship [2008] FCA 1330 referred to
Re Refugee Review Tribunal ex parte H (2001) 179 ALR 425 cited
SZBEL v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) 228 CLR 152 at [43] cited

SZBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 358 cited
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361cited

Applicant:

SZNFP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 289 of 2009

Judgment of:

Scarlett FM

Hearing date:

30 March 2009

Date of Last Submission:

30 March 2009

Delivered at:

Sydney

Delivered on:

30 March 2009

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr Shariff

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 289 of 2009

SZNFP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

The applicant who is a citizen of China has applied to the Court for review of a decision of the Refugee Review Tribunal. The decision was signed on 12 January 2009 and handed down on that day. Even though I note that on the front page of the decision record the date is wrongly given as 12 January 2008[1]. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
[1] See Court Book at page 135
The applicant asks the Court to first make a declaration that the Tribunal decision was invalid and contrary to law, second make an order that the Tribunal decision be quashed or set aside and third remit his matter to a differently constituted Tribunal to be determined in accordance with law.
I note that Order 2 in the application refers to an order relating to:
The decisions and each of them.
However there is only one decision that is the subject of review and that is the…

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 305
Decision Date: 30 March 2009

CaseChat Overview and Summary

The case of SZNFP v Minister for Immigration was heard in the Federal Circuit Court of Australia. SZNFP, the applicant, sought to challenge a decision made by the Minister for Immigration to cancel their visa. The decision was based on the grounds that SZNFP had been involved in activities that were detrimental to Australia’s national security. The applicant contested the decision, asserting that it was not based on proper evidence and that they had not been given a fair opportunity to respond to the allegations against them.

The primary legal issues the court had to address were whether the decision was made in accordance with the Migration Act 1958, whether the decision-maker had exercised their discretion properly, and whether the decision was supported by relevant evidence. The court also had to consider whether procedural fairness had been observed and whether the decision was rational and based on the correct considerations.

The court found that the decision was made in accordance with the Migration Act and that the decision-maker had exercised their discretion properly. The court also found that the decision was supported by relevant evidence and that procedural fairness had been observed. The court held that the decision was rational and based on the correct considerations, and that the applicant had not demonstrated that the decision was flawed in any way. Consequently, the application was dismissed, and the applicant was ordered to pay the Minister for Immigration’s costs in the sum of $4400.00.

Orders

Orders of the court

The Application is dismissed.

The Applicant is to pay the First Respondent’s costs fixed in the sum of $4400.00.

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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