SZOEC v Minister for Immigration - [2010] FMCA 489

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOEC v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 489

MIGRATION – Review of RRT decision – where Tribunal accepted that the applicant was a BNP supporter but did not find him to be politically active – whether Tribunal relied on a false dichotomy – whether Tribunal failed to take into account evidence of particular witness or made findings not supported by the evidence – where witness account not corroborative of applicant’s claims – where applicant submitted a large quantity of extra information after Tribunal hearing, some of which was inconsistent with his oral evidence and was relied on by the Tribunal to make adverse credibility findings – whether these inconsistencies constituted new issues such as to require the Tribunal to invite the applicant to a further hearing – whether Tribunal failed to address a claim clearly arising from the applicant’s submissions.

Migration Act 1958 (Cth), ss.92R(3), 424A, 425

Applicant:

SZOEC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 335 of 2010

Judgment of:

Raphael FM

Hearing date:

28 June 2010

Date of Last Submission:

28 June 2010

Delivered at:

Sydney

Delivered on:

16 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr A Shearer

Solicitors for the Applicant:

Refugee Advice & Casework Service

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 335 of 2010

SZOEC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh who arrived in Australia on 14 July 2009 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 22 July 2009. On 2 October 2009 a delegate of the Minister refused to grant a protection visa and, on 2 November 2009, the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing with his advisor before 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 489
Decision Date

CaseChat Overview and Summary

The case of SZOEC v Minister for Immigration & Citizenship [2010] FMCA 489 concerns the application of SZOEC, a citizen of Bangladesh, for a review of a decision of the Refugee Review Tribunal affirming a decision by a delegate of the Minister for Immigration & Citizenship that SZOEC did not qualify for a protection (Class XA) visa. The applicant, who arrived in Australia in 2009, claimed that he was a supporter of the Bangladesh National Party and that he faced a real chance of persecution should he return to Bangladesh because of that support. The Tribunal found that the applicant was a supporter of the BNP but was not politically active or a person of particular interest to the Awami League, the ruling party of Bangladesh. The applicant sought review of the Tribunal’s decision on the basis of jurisdictional error. The Federal Magistrate dismissed the application and held that the Tribunal’s decision was not affected by jurisdictional error. The Magistrate rejected the applicant’s claims that the Tribunal had failed to ask the right question, had failed to take into account relevant evidence, had made a finding for which there was no evidence, had breached a statutory obligation to invite the applicant to a further hearing, and had failed to address a claim raised by the applicant. The application was dismissed and the applicant ordered to pay the Minister’s costs.

Orders