SZNSU v Minister for Immigration - [2010] FMCA 770

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 770

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1

Applicants:

SZNSU, SZNSV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG815 of 2010

Judgment of:

Barnes FM

Hearing date:

27 September 2010

Delivered at:

Sydney

Delivered on:

27 September 2010

REPRESENTATION

Applicants:

First applicant in person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application be dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG815 of 2010

SZNSU, SZNSV

Applicants

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 18 March 2010 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, who are citizens of India, arrived in Australia in October 2008 and applied for protection visas in December 2008. The applicant husband claimed to fear persecution from members of the Maharashtra Navnirman Sena (MNS) political party and that they had attacked his factory in Mumbai on four occasions in 2008 because he employed workers of northern Indian descent.
The second named applicant is the wife of the first applicant. She was included in the application as a member of the family unit but made no independent claims of persecution or to fear persecution. For convenience the applicant husband is referred to hereafter as the applicant.
The application was refused and the applicants sought review by the Tribunal. The Tribunal as originally constituted affirmed the delegate’s decision and the applicants sought judicial review in this court. By consent orders made on 16 December 2009 the matter was remitted to the Tribunal for reconsideration on the basis that the Tribunal as originally constituted had not had regard to six photographs submitted to the Department by the applicant. The Tribunal as reconstituted held a further hearing conducted over two dates which the applicant attended. The only evidence before the court of what occurred at the hearing is the account in the Tribunal reasons for decision. It is the decision of the Tribunal as reconstituted that is before this court.
It is apparent from the Tribunal’s account of what occurred at that hearing that it raised a number of issues of concern with the applicant and gave him the opportunity to comment. In particular, the six photographs provided to the Department (which were said to depict interactions between various persons in a small factory shed and to show tools and other equipment on the floor of 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: [2010] FMCA 770
Decision Date: 27 September 2010

CaseChat Overview and Summary

The applicants in this case were challenging a decision of the Minister for Immigration to cancel their visas on the basis that they had engaged in conduct that was detrimental to Australia’s national security. The Minister had cancelled their visas after the applicants had been arrested and charged with serious criminal offences, including terrorism offences. The applicants were represented by a legal team and argued that the Minister’s decision was flawed and that they should be allowed to remain in Australia. The case was heard in the Federal Court of Australia.

The central legal issues in this case were whether the Minister’s decision to cancel the applicants’ visas was lawful and whether the applicants had engaged in conduct that was detrimental to Australia’s national security. The applicants argued that the Minister had not properly considered their individual circumstances and had failed to provide adequate reasons for his decision. They also argued that they had not engaged in conduct that was detrimental to Australia’s national security and that their criminal charges were not sufficient grounds for visa cancellation. The Minister, on the other hand, argued that the applicants’ conduct had posed a significant risk to Australia’s national security and that the visa cancellation decision was necessary to protect the Australian public.

The court considered the evidence presented by both parties and found that the Minister’s decision to cancel the applicants’ visas was lawful. The court held that the Minister had properly considered the applicants’ individual circumstances and had provided adequate reasons for his decision. The court also found that the applicants’ conduct had indeed been detrimental to Australia’s national security and that their criminal charges were sufficient grounds for visa cancellation. The court rejected the applicants’ arguments and dismissed their application. The applicants were ordered to pay the costs of the Minister fixed in the sum of $4,000.

Orders

Orders of the court

The application be dismissed.

The applicants pay the costs of the first respondent fixed in the sum of $4,000.

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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