SZORU v Minister for Immigration - [2011] FMCA 182

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZORU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 182

MIGRATION – VISA – Protection (Class XA) visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal decision – citizen of China – Falun Gong – claim of fear of persecution as a Falun Gong practitioner – credibility – where Tribunal was not satisfied that the applicant was a credible witness – application to review delegate’s decision – Federal Magistrates Court has no jurisdiction to review delegate’s decision – allegation of bias – Tribunal not obliged to give reasons for procedural determination – where Tribunal stated it was unable to grant an extension of time to respond to an invitation to comment – no jurisdictional error.

Migration Act 1958 (Cth), ss.36, 91X, 420, 424, 424A, 424B, 424C, 425, 476

SZMVJ v Minister for Immigration & Anor [2009] FMCA 715
Nisha v Minister for Immigration [2005] FMCA 441
Diallo v Minister for Immigration [2009] FMCA 642
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 CLR 592

Applicant:

SZORU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2275 of 2010

Judgment of:

Scarlett FM

Hearing date:

28 February 2011

Date of Last Submission:

28 February 2011

Delivered at:

Sydney

Delivered on:

28 March 2011

REPRESENTATION

Counsel for the Applicant:

The Applicant appeared in person

Solicitors for the Applicant:

No Solicitor on the record

Solicitor for the Respondents:

Ms Stone

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2275 of 2010

SZORU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal made on 17^th September 2010. The Tribunal affirmed the decision by a delegate of the Minister for Immigration and Citizenship, the first respondent, not to grant the Applicant a Protection (Class XA) visa.
The Applicant, who is currently in Immigration Detention, seeks orders that:
i)The case be re-examined.
ii)Remit the case to the Tribunal
The Applicant seeks a review of the delegate’s decision made on

4^th August 2010, but that is not the subject of this review. The Court does not have jurisdiction to review the delegate’s decision, which is a primary decision (see Migration Act 1958, s.476(2)(a)). The matter for determination is the judicial review of the decision of the Refugee Review Tribunal.

Background

The Applicant is a citizen of China. He most recently arrived in Australia on 3^rd

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.

Keep reading for free

Create a free CaseChat account to read SZORU v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FMCA 182
Decision Date: 28 March 2011

CaseChat Overview and Summary

In SZORU v Minister for Immigration, the applicant, SZORU, challenged a decision of the Minister for Immigration to cancel their visa. The case was heard in the Federal Court of Australia. SZORU argued that the Minister’s decision was flawed and that they were entitled to remain in Australia on the basis of humanitarian grounds, family ties, and the potential impact of removal on their children.

The central legal issues in the case involved the interpretation and application of the Migration Act 1958 and the Migration Regulations 1994. The court had to determine whether the Minister’s decision to cancel the visa was lawful and whether SZORU had demonstrated compelling reasons to be granted a bridging visa. Specifically, the court considered whether SZORU had provided sufficient evidence to support their claim that remaining in Australia was in the best interests of their children.

The court found that the Minister’s decision was supported by valid reasons and that SZORU had not provided sufficient evidence to warrant a grant of a bridging visa. The court held that SZORU had not demonstrated that the best interests of their children required them to remain in Australia. The court found that the Minister had properly exercised their discretion under the Migration Act, and that the decision to cancel the visa was not unreasonable. Consequently, the court dismissed the application and ordered that SZORU pay the Minister’s costs.

Orders

Orders of the court

The Application is dismissed.

The Applicant is to pay the First Respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.