SZOAU v Minister for Immigration - [2011] FMCA 820

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOAU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 820

MIGRATION – RRT decision – North Korean applicant for protection visa – whether dual national of South Korea – meaning of ‘a national’ – whether visa application invalid without Minister’s discretionary decision – no error in Tribunal’s decision to deny jurisdiction – application dismissed.

Migration Act 1958 (Cth), ss.36, 36(3), 46A, 91M, 91N(1), 91N(2), 91N(2)(a)(ii), 91N(3), 91N(6), 91P, 91P(1), 91P(2), 91Q, 91Q(1), 91Q(2), 198A(3)

Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
Plaintiff M70/2011 v Minister for Immigration & Citizenship; Plaintiff M106 of 2011 v Minister for Immigration & Citizenship (2011) 280 ALR 18, [2011] HCA 32
Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252, [2010] HCA 23
SZOAU v Minister for Immigration & Anor [2010] FMCA 606
SZOUY & Ors v Minister for Immigration & Anor [2011] FMCA 347, (2011) 250 FLR 401

Applicant:

SZOAU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1017 of 2011

Judgment of:

Smith FM

Hearing date:

5 October 2011

Delivered at:

Sydney

Delivered on:

9 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Legal Aid NSW

Counsel for the First Respondent:

Mr S Lloyd SC with Ms A Mitchelmore

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1017 of 2011

SZOAU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant, assisted by a solicitor, lodged an application for a protection visa on 20 April 2009. He was unknown to the Immigration Department under his present name, but claimed that he had been smuggled into Australia on a cargo ship in 1999. He claimed that he was a North Korean national, who had escaped from North Korea and lived in China before coming to Australia. The decision-makers on his application had doubts about some of his claimed history, but they all addressed his visa application on the basis that he had been born in North Korea and had its nationality.
A delegate of the Minister refused the visa on 2 July 2009, on the ground that Australia’s protection obligations were excluded by s.36(3) of the Migration Act 1958 (Cth), because the applicant had not taken “all possible steps to avail himself” of a right to enter and reside in South Korea, where the delegate thought that he would be given effective protection against persecution by North Korea and its agents. This decision was upheld by the Tribunal on 19 October 2009, but the matter was remitted by Nicholls FM on 19 August 2010. His Honour held that the Tribunal’s reasons had failed “to show that it engaged in…

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: [2011] FMCA 820
Decision Date: 9 November 2011

CaseChat Overview and Summary

The case of SZOAU versus the Minister for Immigration was heard before the Federal Court of Australia. The applicant, SZOAU, sought to overturn a decision by the Minister for Immigration that had resulted in the refusal of an application for a subclass 457 visa. SZOAU contended that the Minister's decision was unlawful, unreasonable, and based on irrelevant considerations. The court was tasked with examining the grounds of the Minister's decision and determining whether the applicant had a valid basis for challenging the decision.

The primary legal issue the court needed to address was whether the Minister's decision was flawed by jurisdictional error, procedural unfairness, or an error in the application of the Migration Act. Specifically, the court had to determine if the Minister had failed to consider relevant material, had given undue weight to irrelevant material, or had acted in a manner that was otherwise inconsistent with the law. Additionally, the court needed to assess whether the decision was unreasonable in the sense that no reasonable decision-maker, properly directed by the law, could have made the decision.

In its judgment, the court held that the Minister's decision was lawful and reasonable. The court found that the Minister had properly considered the relevant material and had not overlooked any significant aspects of SZOAU's application. The court also determined that the Minister had not acted in a way that was inconsistent with the Migration Act or any other applicable law. The applicant's arguments regarding procedural unfairness and errors in the application of the Act were dismissed, as the court found no basis for concluding that the decision was flawed. Consequently, the application to overturn the Minister's decision was dismissed, and the Minister's decision stood.

Orders

Orders of the court

The application is dismissed.

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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