SZOHK v Minister for Immigration - [2010] FMCA 486

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOHK v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 486

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Applicant:

SZOHK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 706 of 2010

Judgment of:

Emmett FM

Hearing date:

22 June 2010

Date of Last Submission:

22 June 2010

Delivered at:

Sydney

Delivered on:

8 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Mr D. Prince, Kinslor Prince Lawyers

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms L. Buchanan, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 706 of 2010

SZOHK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 March 2010 and handed down the same day.
The applicant claims to be a citizen of India and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 6 July 2009 having departed legally from Cochin on a passport issued in his own name and a Class TU 572 Student visa issued on 26 June 2009.
On 31 July 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 11 November 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 2 December 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 9 March 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 31 March 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides…

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 SZOHK v Minister for Immigration

Details

AGLC: SZOHK v Minister for Immigration [2010] FMCA 486
Case: [2010] FMCA 486
Decision Date: 8 July 2010

CaseChat Overview and Summary

The Federal Magistrates Court was called upon to review a decision of the Refugee Review Tribunal, which had upheld a delegate's refusal to grant a protection visa to the applicant, SZOHK, a citizen of India. The applicant claimed to have witnessed a political murder in India and feared for his safety if he were to return. The Tribunal found the applicant's claims to be unsubstantiated and concluded that any fear he had was not based on a Convention reason. The applicant sought judicial review of the Tribunal's decision, arguing that it was affected by jurisdictional error. The court considered three grounds of error: the Tribunal's rejection of the applicant's claim of witnessing a political murder, the Tribunal's failure to consider whether the applicant might be imputed with a political opinion based on his decision to give or withhold evidence, and the Tribunal's assessment of state protection available to the applicant.

The court found that the Tribunal's reasoning was neither irrational, illogical, nor inherently contradictory. It was open to the Tribunal to consider the extensive reporting by the Indian media on politically motivated violence and to conclude that the lack of reporting on the alleged murder suggested it did not occur. The court further held that there was no obligation on the Tribunal to consider imputed political opinions when it had already comprehensively rejected the applicant's primary claims. Finally, the court found that the Tribunal had correctly assessed the availability of state protection and that its findings were supported by the evidence before it. The court concluded that the Tribunal's decision was not affected by jurisdictional error and dismissed the application for judicial review with costs.

Orders