SZOXM v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOXM & ANOR v MINISTER FOR IMMIGRATION [2011] FMCA 564
MIGRATION – Persecution – review of decision of ministerial delegate – visa – protection visa – applicants citizens of two countries – whether their protection visa applications were valid applications – review of discretionary decision to not lift the bar on the validity of protection visa applications made by citizens of two countries – whether Federal Magistrates Court has jurisdiction to review such decisions.
Migration Act 1958, ss.36, 47, 91M, 91N, 91P, 91Q, 417, 474, 476
Border Protection Legislation Amendment Act 1999
Koe v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 508
SZOUY v Minister for Immigration & Citizenship [2011] FMCA 347
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
House v R (1936) 55 CLR 499
Ozmanian v Minister for Immigration, Local Government & Ethnic Affairs (1996) 137 ALR 103
Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1
S1083/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1455
Raikua v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 158 FCR 510
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
First Applicant: SZOXM
Second Applicant: SZOXN
Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
File Number: SYG 20 of 2011
Judgment of: Cameron FM
Hearing dates: 4 May 2011, 24 June 2011
Date of Last Submission: 24 June 2011
Delivered at: Sydney
Delivered on: 22 July 2011

REPRESENTATION

Solicitors for the Applicants: Turner Coulson Immigration Lawyers
Counsel for the Respondent: Ms A. Mitchelmore
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 20 of 2011

SZOXM

First Applicant

SZOXN

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The first and second applicants, who are mother and son respectively, are citizens of both the United Kingdom and another country and before coming to Australia in 2010 were resident in the United Kingdom. They claim to fear harm in the United Kingdom from the first applicant’s former husband who has made against them threats of death and disfigurement.

  2. After their arrival in Australia on 28 August 2010 the applicants lodged applications for protection visas. On 14 December 2010 a delegate of the Minister wrote to the applicants’ migration agent advising that the applications were invalid. The delegate found the applications to be invalid pursuant to s.91P(2) of the Migration Act1958 (“Act”) because the applicants were nationals of two countries. The applicants requested that the Minister lift the bar on s.91P to allow valid protection visas to be lodged. This request was not referred to the Minister; his department finding that the case did not fall within his guidelines because the applicants had successfully accessed effective state protection in the United Kingdom. The applicants have applied to this Court for judicial review of the delegate’s decision.

  3. For the reasons…

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Details
Case
[2011] FMCA 564
Decision Date

CaseChat Overview and Summary

The applicants, SZOXM, sought review of a decision by the Minister for Immigration to refuse their protection visa applications. The matter was heard and determined by the Federal Court of Australia. The applicants contended that the Minister had erred in refusing their applications for protection visas, arguing that the Minister had failed to properly consider their claims of persecution and threats from the applicants' former husband.

The central legal issue before the court was whether the Minister had correctly exercised his discretion in refusing the applicants' protection visa applications. Specifically, the court had to determine whether the Minister had failed to consider all aspects of the applicants' claims and whether the Minister had misapplied the relevant legal principles in reaching his decision.

The court found that the Minister had properly exercised his discretion and that the applicants' claims did not establish a sufficient basis for a protection visa. The court held that the Minister was not required to consider an application that was not a valid application, as per section 47(3). The court found that the applicants' claims, while distressing, did not meet the threshold for a protection visa under the applicable legislation. The court also found that the Minister had properly considered the applicants' claims and had not misapplied the relevant legal principles.

The court dismissed the application, upholding the Minister's decision to refuse the applicants' protection visa applications. The applicants were not granted a protection visa.

Orders

Orders of the court

1.

The application be dismissed.

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

If an application is an invalid application, the Minister cannot consider it. Section 47(3) provides:47 Consideration of valid visa application…(3)To avoid doubt, the Minister is not to consider an application that is not a valid application. In her protection visa application, the first applicant made the following claims:a)on 22 August 2010 her former husband visited her house in the United Kingdom and told her that he wanted to take their son to their country of birth. When she refused he became angry and threw objects at her and threatened, if she involved the police, to kill their son and then her, to burn her, their son and himself, and to throw acid in her face. After he left, she went to the police to report the incident but asked that they not arrest her former husband as she did not want to anger him;b)her former husband returned to her house that night. He said to her “from this moment all I am looking for is a simple excuse to make the rest of your life such a hell” and that if she wanted to stay alive and her son to stay alive, she had to accept everything he said. He also told her that even if he went to prison, when he was released he would disfigure her face with acid;c)she received many threatening telephone calls from her former husband;d)she found a bottle of caustic soda on her doorstep;e)her former husband telephoned her on 24 August 2010 and said that he had all the equipment ready to take his revenge against her and that he was planning on “bathing” her in a chemical. Because of these threats, she made a full statement to the police on 25 August 2010;f)after her arrival in Australia, her own mother, who still lived in the first applicant’s county of birth, told her that the former husband had telephoned threatening to kill the applicants. The former husband told the first applicant’s mother that he had been arrested but that he would find the applicants and “take his revenge”. He said that he had a needle infected with HIV and that he wanted to inject the first applicant with it. He also said that he had hired someone to shoot both applicants and that his friends had promised to shoot the first applicant;g)a few days after her arrival in Australia she received an email from the police in the United Kingdom saying that her former husband had been arrested, interviewed and granted bail; h)while the applicants were still in the United Kingdom, the first applicant’s former husband had told their son that he could cut people’s heads off and had shown him a violent movie, which the first applicant identified; andi)she cannot return to her country of birth because there her former husband will have the power to take her son from her. Further, her divorce is not legally accepted there and there would be no one to protect her from her former husband. The second applicant lodged a separate protection visa application but relied on the same claims as those of the first applicant. The grounds of the further amended application were pleaded as follows:1.The Respondent misconstrued and misapplied the relevant law.2.The decision maker failed to consider all integers of the Applicant’s application.3.The decision maker failed to carry out his or her statutory duty.4. The decision maker applied the wrong test.