SZOMD v Minister for Immigration - [2010] FMCA 1001

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOMD v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 1001

MIGRATION – Review of decision of Refugee Review Tribunal – weight given to material a matter for the Tribunal – Tribunal did not ask itself the wrong question – findings open to the Tribunal to make – no failure of procedural fairness – not for Tribunal to make out applicant’s case for him – no failure to make an obvious inquiry – Tribunal did not arbitrarily impose a standard of Falun Gong practice – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 424AA, 425, 476
Evidence Act 1995 (Cth), s.136

Applicant:

SZOMD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1354 of 2010

Judgment of:

Nicholls FM

Hearing date:

26 October 2010

Date of Last Submission:

26 October 2010

Delivered at:

Sydney

Delivered on:

21 December 2010

REPRESENTATION

Appearing for the Applicant:

Mr M Vassili

Solicitors for the Applicant:

Vassili Fozzard Lawyers & Consultants

Counsel for the Respondents:

Mr D Hughes

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 18 June 2010 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1354 of…

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 1001
Decision Date

CaseChat Overview and Summary

This case involves a review of a decision made by the Refugee Review Tribunal (the Tribunal) in relation to the applicant's claim for a protection visa. The Tribunal had affirmed the decision of the delegate of the Minister for Immigration and Citizenship (the Minister) to refuse the applicant a protection visa. The applicant sought review of the Tribunal's decision by the Federal Magistrates Court of Australia.

The Tribunal's decision was based on several findings, including that the applicant was not a genuine Falun Gong practitioner, his account of events in China was not credible, and he did not have a well-founded fear of persecution if he were to return to China. The applicant challenged the Tribunal's decision on several grounds, including that the Tribunal failed to properly consider the medical evidence, did not accept his credit as a witness, and did not properly consider his practice of Falun Gong.

The Court found that the Tribunal's decision was not in error. The Court held that it was for the Tribunal to give weight to the evidence before it, and that the Tribunal's findings were reasonably open to it on what was before it. The Court also found that the Tribunal was not required to uncritically accept the applicant's evidence or to accept that his medical condition affected his capacity to give evidence. Furthermore, the Court found that the Tribunal's approach to the applicant's claim to be a Falun Gong practitioner was appropriate and did not reveal any failure of procedural fairness.

In conclusion, the Court dismissed the applicant's application for review of the Tribunal's decision, finding that there was no error on the part of the Tribunal. The Court ordered that the applicant pay the Minister's costs in the amount of $5,865.

Orders