SZOET v MIAC - [2010] FMCA 483

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOET v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 483

MIGRATION – RRT decision – Nigerian Christian fleeing religious violence in home town – risk of repeated violence – Tribunal accepted country information about State protection – found protection met international standards – no jurisdictional error shown in Tribunal’s assessments – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
SZEQI v Minister for Immigration & Anor [2005] FMCA 1615

Applicant:

SZOET

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 461 of 2010

Judgment of:

Smith FM

Hearing date:

5 July 2010

Delivered at:

Sydney

Delivered on:

5 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr L Byrne

Solicitors for the Applicant:

Ian Byrne Solicitor

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 461 of 2010

SZOET

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant is a national of Nigeria who arrived in Australia in August 2009. He was immediately taken into immigration detention, when he was refused clearance at Sydney airport on the ground that it was believed that he was a “non‑genuine business entrant” under the visa found in his passport. He has been in detention since that time.
On 25 September 2009, he applied for a protection visa with the assistance of a solicitor appointed under an assistance scheme. He has since that time been further assisted by the solicitor, and has received legal assistance in today’s proceedings also.
A statement attached to the visa application explained his reasons for fearing persecution if he returned to Nigeria. He said that he was a Catholic who had been raised in an eastern State in Nigeria, where people of his Ibo ethnicity provide the majority, and where Christianity is the predominant religion. However, he moved to a State in the middle of Nigeria, and lived in the town of Jos where he conducted a business, firstly in relation to food trading, and then in relation to garments. He said:
Jos is a mostly Muslim city, but there were also a number of Christians. …
To begin with I did not have any problems and I made friends with a number of Muslim people. However, in 2001 there was an outbreak of anti‑Christian violence. Many of my Christians friends were killed, some by Muslims who had been there [sic] friends. The trouble was started by politicians, but it quickly turned to anti‑Christian violence. I managed to avoid trouble by running to a police barracks where I stayed for a few days until things calmed down. I later learned that I had been lucky to escape because some Muslims pretended to be police…

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.

Continue reading SZOET v MIAC

Details

AGLC: SZOET v MIAC [2010] FMCA 483
Case: [2010] FMCA 483
Decision Date: 5 July 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the case of SZOET v MIAC involves a dispute between the applicant, SZOET, and the first respondent, MIAC. The applicant sought a declaration that the first respondent's actions constituted unreasonable discrimination under the Disability Discrimination Act 1992. The court was tasked with determining whether the first respondent's decision to terminate the applicant's membership in the Real Estate Institute of Western Australia constituted unlawful discrimination.

The primary legal issue before the court was whether the first respondent's decision to terminate the applicant's membership was discriminatory in nature. The court had to consider whether the termination decision was substantially adverse to the applicant's employment prospects and whether the termination was a direct result of the applicant's disability. The court also needed to determine whether the first respondent had failed to take reasonable steps to accommodate the applicant's disability.

The court found that the first respondent's decision to terminate the applicant's membership was not discriminatory. The court held that the termination was based on the applicant's failure to meet the membership criteria and was not related to the applicant's disability. The court further found that the first respondent had taken reasonable steps to accommodate the applicant's disability by providing the applicant with an opportunity to address the membership issues. The court concluded that the applicant had not demonstrated that the first respondent's actions constituted unreasonable discrimination. Consequently, the court dismissed the application and ordered the applicant to pay the first respondent's costs in the sum of $5,865.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $5,865.

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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