SZPZP v MINISTER FOR IMMIGRATION & ANOR - [2011] FMCA 406

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZPZP v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 406

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 56, 65, 424, 424A, 424AA

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v SZKTI (2009) 258 ALR 434
Randhawa v Minister for Immigration (1994) 124 ALR 265
SJSB v Minister for Immigration [2004] FCAFC 215
SZBCS v Minister for Immigration [2005] FMCA 25
SZHISv Minister for Immigration [2006] FCA 1641

SZKCQ v Minister for Immigration (2008) 170 FCR 236

Applicant:

SZPZP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 403 of 2011

Judgment of:

Driver FM

Hearing date:

31 May 2011

Delivered at:

Sydney

Delivered on:

31 May 2011

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Mr M Alderton
Sparke Helmore

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 403 of 2011

SZPZP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application filed on 9 March 2011 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 February 2011. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts relating to the applicant’s protection visa claims and the decisions of the delegate and the Tribunal on them is derived from the Minister’s written submissions filed on 23 May 2011.
The applicant is a citizen of the People’s Republic of China (PRC) who arrived in Australia on 7 March 2010 (court book (CB) 13) and applied for a protection (Class XA) visa on 8 June 2010: CB 1-24. The applicant provided copies of pages from his passport with that application: CB 29-45.
In a typed four page statement submitted with his protection visa application, the applicant claimed that he had been the deputy manager of a mill, which was suddenly closed down in January 2010. The applicant led a protest by staff against the corruption in the sale and closure of the mill. This led to his arrest and detention for three nights in January 2010. He claimed that Mr Li (the chief of the Textile Industry Bureau) falsely accused him of corruption, bribery and having extramarital affairs. He also claimed that the…

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 SZPZP v MINISTER FOR IMMIGRATION & ANOR

Details

AGLC: SZPZP v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 406
Case: [2011] FMCA 406
Decision Date: 31 May 2011

CaseChat Overview and Summary

The Federal Magistrates Court of Australia was presented with a case involving the review of a decision made by the Refugee Review Tribunal, which affirmed a decision of the delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the applicant, SZPZP, a citizen of the People's Republic of China. The primary issues before the court were whether the Tribunal had procedurally erred, misapplied the law, or made incorrect factual findings leading to a wrong decision. The applicant did not appear before the court but requested the matter be determined in his absence. The court was required to assess whether the application presented an arguable case of jurisdictional error.

In its reasoning, the court found that the applicant's grounds of review were unparticularised and thus did not present a sufficient basis for the court to engage in a meaningful review. The court held that the Tribunal was entitled to obtain and rely on information from the Department of Foreign Affairs and Trade, as permitted under the Migration Act. Additionally, the Tribunal was not obligated to uncritically accept the applicant's claims or provide the benefit of the doubt, nor was there any procedural unfairness as the applicant was given ample opportunity to respond to the information presented. The court also noted that the Tribunal's adverse credibility findings were supported by the evidence and were not subject to judicial review. Given these findings, the court concluded that there was no arguable case of jurisdictional error and dismissed the application.

The court ordered that the applicant pay the Minister's costs and disbursements amounting to $2,935, in accordance with the Federal Magistrates Court Rules. The decision was rendered in the absence of the applicant, who chose not to appear before the court to address the issues raised in the application.

Orders