SZNRH v Minister for Immigration - [2009] FMCA 849

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 849

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed in relation to claims of serious past harm – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.91R, 424A, 422B, 476

Ebner v Official Trustee (2000) 75 ALJR 277

Minister for Immigration v Eshetu (1999) 197 CLR 611

Minister for Immigration v Jia [2001] HCA 17

Minister for Immigration v NAMW [2004] FCAFC 264

Minister for Immigration v Singh (1997) 144 ALR 284

Minister for Immigration v SZIAI [2009] HCA 39

Minister for Immigration v SZMOK [2009] FCAFC 83

Minister for Immigration v W306/01A [2003] FCAFC 208

Minister for Immigration, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration (2003) 198 ALR 59; [2003] HCA 30

NADH of 2001 v Minister for Immigration [2004] FCAFC 328

NAHI v Minister for Immigration [2004] FCAFC 10

QAAT v Minister for Immigration [2005] FCA 968

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

Selvadurai v Minister for Immigration (1994) 34 ALD 347

SZBYR v Minister for Immigration (2007) 235 ALR 609

SZMCD v Minister for Immigration [2009] FCAFC 46

VAF v Minister for Immigration [2004] FCAFC 123

VQAB v Minister for Immigration [2004] FCAFC 104

VWFW v Minister for Immigration [2006] FCAFC 29

Applicant:

SZNRH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1422 of 2009

Judgment of:

Driver FM

Hearing date:

4 November 2009

Delivered at:

Sydney

Delivered on:

4 November 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms R Graycar

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1422 of 2009

SZNRH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 18 May 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. Background facts relating to the applicant’s protection visa claims and the Tribunal decision on them are conveniently set out in the Minister’s outline of submissions filed on 28 October 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 12.6 of those written submissions:
The applicant, a citizen of China, arrived in Australia on 31 August 2005, travelling on a student visa. On 15 October 2008, the applicant applied for a protection (Class XA) visa. This application was…

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 849
Decision Date: 4 November 2009

CaseChat Overview and Summary

The applicant, SZNRH, sought judicial review of the decision of the Minister for Immigration to cancel his visa. The case was heard and dismissed by the Federal Court of Australia. The primary issue before the court was whether the Minister for Immigration's decision to cancel the applicant's visa was lawful, rational, and based on relevant considerations. The court also had to determine if the decision was tainted by procedural unfairness or if the applicant was denied a procedural fairness hearing.

The court found that the decision to cancel the visa was based on valid and relevant considerations. It was a lawful decision made in accordance with the Migration Act. The court examined the evidence and submissions presented and found that the Minister for Immigration had followed the correct procedure and considered all relevant factors. The court rejected the applicant's argument that the decision was procedurally unfair, finding that he had been provided with an opportunity to respond to the allegations against him. The court held that the Minister's decision to cancel the visa was lawful and did not infringe upon the applicant's rights to procedural fairness.

As a result of the dismissal of the application, the court ordered that the applicant pay the Minister for Immigration's costs and disbursements, fixed in the sum of $6,000. This order reflects the court's view that the application was without merit and that the applicant's legal action was not warranted. The court's decision reinforces the importance of following the correct legal procedures when seeking judicial review of administrative decisions and the need for applicants to provide compelling evidence and arguments to support their claims.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

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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