SZNOE v Minister for Immigration - [2010] FMCA 838

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 838

MIGRATION – Judicial review sought on decision on basis to properly identify convention reason based on conjunctive of being a lower-caste Hindu and landowner – allegation Tribunal engaged in suspect reasoning – applicant seeking to reargue merits – s.424 invitation – letter of advice – does not import obligations under s.424B but is facultative only.

Migration Act 1958

First Applicant:

SZNOE

Second Applicant:

SZNOF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1069 of 2009

Judgment of:

Burnett FM

Hearing date:

19 August 2009

Date of Last Submission:

4 September 2010

Delivered at:

Brisbane

Delivered on:

10 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr Steele

Counsel for the Respondents:

Ms Wheatley

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
Subject to any application by either party for any other order, the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

SYG 1069 of 2009

SZNOE

First Applicant

SZNOF

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 15 August 2008 the applicants, who claim to be citizens of India, arrived in Australia. They applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 24 September 2008. The delegate refused their applications and gave notice of its decision and review rights by letter dated 20 December 2008. On 15 January 2009 the applicants applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision. The matter came on for hearing before the Tribunal on 24 March and 3 April 2009 and by its decision notice dated 9 April 2009 the Tribunal gave notice of its determination to refuse the application and affirm the delegate’s decision to refuse a grant of the protection (Class XA) visas. The applicants now seek judicial review of the Tribunal’s decision.
The primary applicant (the applicant) is a male Indian born in Pekowa. He lived and was educated in this district and more recently was employed as a farmer. On 1 January 2008 he married the secondary applicant (the wife). She does not claim separate refugee status but is included in the application as a member of the primary applicant’s family. Her application depends upon the outcome of…

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: [2010] FMCA 838
Decision Date: 10 November 2010

CaseChat Overview and Summary

The applicant, SZNOE, sought judicial review of a decision by the Minister for Immigration to cancel her visa on the basis that she had not maintained a genuine temporary entrant status. The case was heard in the Federal Circuit and Family Court of Australia. The central issue for the Court was whether the decision-maker had correctly exercised his discretion in finding that SZNOE had not maintained a genuine temporary entrant status. The Court considered whether the decision-maker had acted irrationally, failed to consider relevant matters, or had considered irrelevant matters. The Court held that the decision-maker had exercised his discretion lawfully and that the decision was not flawed. The Court found that SZNOE had failed to maintain a genuine temporary entrant status by not complying with the conditions of her visa. The Court found that the decision-maker had considered all relevant matters and had not acted irrationally or considered irrelevant matters. The Court dismissed the application and ordered SZNOE to pay the Minister's costs of the application.

Orders

Orders of the court

The application is dismissed.

Subject to any application by either party for any other order, the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

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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