SZOPF v Minister for Immigration - [2010] FMCA 924

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPF v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 924

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal adopted the role of arbiter of Catholic doctrine – whether an illegitimate a priori approach was taken – whether the Tribunal failed to carry out its statutory duty to review the delegate’s decision – whether the Tribunal failed to inquire – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 414, 418, 420

Applicant:

SZOPF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1913 of 2010

Judgment of:

Nicholls FM

Hearing date:

3 November 2010

Date of Last Submission:

3 November 2010

Delivered at:

Sydney

Delivered on:

1 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr J F Gormly

Appearing for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application made on 31 August 2010, and amended on 21 October 2010, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1913 of 2010

SZOPF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 31 August 2010, and amended on 21 October 2010, under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision 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 924
Decision Date

CaseChat Overview and Summary

The case of SZOPF v Minister for Immigration & Citizenship [2010] FMCA 924 was heard by Nicholls FM in the Federal Magistrates Court of Australia. The applicant, SZOPF, sought review of the decision of the Refugee Review Tribunal, which affirmed the decision of the Minister’s delegate to refuse his application for a protection visa. The applicant argued that the Tribunal adopted an illegitimate a priori approach concerning his claim to be a Catholic and thereby fell into jurisdictional error, and that the Tribunal failed to carry out its statutory duty to review the delegate’s decision by not considering four photographs of the applicant in China with fellow practitioners. The court dismissed the application and found no jurisdictional error in the Tribunal’s decision.

The court first addressed the applicant’s complaint that the Tribunal adopted an illegitimate a priori approach in questioning the applicant about his knowledge of Catholic doctrine. The court found that the Tribunal’s inquiry was not objectionable, as it was not prohibited from evaluating the applicant’s answers against independent information evincing the doctrines of the religion in question. The court emphasised that the Tribunal is not bound by technicalities, legal forms, or rules of evidence and that the Tribunal’s approach was consistent with the direction set out in previous cases.

Second, the court found that there was no jurisdictional error in the Tribunal’s failure to consider the four photographs. The court found that the photographs were not before the Tribunal and that the Tribunal had a statutory duty to review the delegate’s decision. The court noted that even if the photographs had been before the Tribunal, they would only have been further evidence of whether the applicant was a practising Roman Catholic in China and that the Tribunal’s failure to consider them did not reveal jurisdictional error.

In conclusion, the court found that none of the grounds revealed jurisdictional error in the Tribunal’s decision and that the application to the Court, as amended, should be dismissed. The court ordered that the applicant pay the first respondent’s costs set in the amount of $6,000.

Orders