SZOAZ v Minister for Immigration - [2010] FMCA 160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOAZ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 160

MIGRATION – Review of RRT decision – applicant a citizen of China claiming protection on religious grounds – where applicant had been imprisoned for evangelising school children in the classroom and had paid a bribe for her release – whether Tribunal correctly applied the law in determining the reason for the extortion – where Tribunal made a separate finding that applicant did not have a well founded fear of persecution partly because she had remained in China for 3 years after her imprisonment without incident – whether Tribunal ought to have informed applicant that the reason for the extortion was in issue.

Migration Act 1958 (Cth), ss.91R(1)(a), 425

Applicant:

SZOAZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2919 of 2009

Judgment of:

Raphael FM

Hearing date:

8 March 2010

Date of Last Submission:

8 March 2010

Delivered at:

Sydney

Delivered on:

11 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Kah Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2919 of 2009

SZOAZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 13 September 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 20 April 2009. On 15 July 2009 a delegate of the Minister refused to grant a protection visa and on 7 August 2009 the applicant applied for a review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 9 October 2009. At that hearing certain information was provided to the applicant which she informed the Tribunal she wished to have time to consider and respond to. A further hearing was scheduled for 26 October 2009 and attended by the applicant. On 3 November 2009 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 4 November.
The Convention ground upon which the applicant claimed she 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: [2010] FMCA 160
Decision Date: 11 March 2010

CaseChat Overview and Summary

SZOAZ, the applicant, brought a case against the Minister for Immigration, the first respondent, in the Federal Court of Australia. The applicant, a non-citizen, sought to challenge the Minister’s decision to cancel their visa on the grounds of character. The decision was based on the applicant’s criminal history, which included convictions for serious drug offences. The applicant argued that the decision was harsh, unjust, and unreasonable and sought a review of the Minister's decision.

The legal issues before the court included whether the Minister’s decision was lawful and whether it was a decision that a reasonable person in the Minister's position, properly informed and aware of all relevant considerations, would have made. The court also considered whether the decision was so unreasonable as to be unjust. The applicant argued that the Minister had failed to properly consider their personal circumstances and had not adequately balanced the public interest considerations.

The court found that the Minister’s decision was lawful and reasonable. The court was satisfied that the Minister had considered all relevant matters, including the applicant's criminal history and the public interest. The court held that the Minister's decision to cancel the applicant's visa was justified and did not amount to an error of law or an unreasonable exercise of discretion. The court found that the applicant's criminal history was a significant factor in the decision, and that the public interest in maintaining a safe and secure community outweighed the applicant's personal circumstances. The court dismissed the application and ordered the applicant to pay the first respondent's costs.

Orders

Orders of the court

Application dismissed.

Applicant to pay the First Respondent’s costs assessed in the sum of $5,400.00.

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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