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SZQGU v Minister for Immigration & Anor

SZQGU v Minister for Immigration & Anor

Case [2011] FMCA 718 23 September 2011

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 718

MIGRATION – Independent merits review of refugee claims of offshore entry person – Afghan Hazara Shia applicant residing in Pakistan – IMR found safe area in Afghanistan protected by non-State militia – not necessary for State protection to be found – no error of law or procedural unfairness – time for application extended – application dismissed.

Migration Act 1958 (Cth), ss.36, 46A, 476, 476A, 477

Applicant:

SZQGU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1090 of 2011

Judgment of:

Smith FM

Hearing date:

24 August 2011

Delivered at:

Sydney

Delivered on:

23 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr P Bodisco

Counsel for the Respondents:

Mr D Godwin

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 30 May 2011.
The application is dismissed.
The applicant must pay the first respondent’s costs in the amount of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1090 of 2011

SZQGU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia without any visa, by boat reaching Christmas Island in February 2010. On 31 March 2010 he requested an assessment by the Department of Immigration of his refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to the applicant on 14 July 2010, and the applicant then applied for ‘independent merits review’ under those procedures.
Mr Packer performed such a review and on 15 February 2011 reported to the Minister, after interviewing the applicant and receiving submissions from his migration agents, Playfair Visa and Migration Services of Sydney. Mr Packer found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth), and recommended that…

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 SZQGU v Minister for Immigration & Anor

Details

AGLC: SZQGU v Minister for Immigration & Anor [2011] FMCA 718
Case: [2011] FMCA 718
Decision Date: 23 September 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case of SZQGU v Minister for Immigration & Anor involved a challenge by the applicant against the Minister for Immigration's refusal to grant the applicant a visa. The applicant sought an extension of time to apply for judicial review and subsequently sought judicial review of the Minister’s decision. The primary issues before the court were whether the applicant had demonstrated sufficient grounds for an extension of time and whether the Minister's decision was lawful, just, and reasonable.

The court considered the applicant's reasons for the delay in seeking judicial review, including the circumstances surrounding the applicant's legal representation and personal difficulties. The court determined that while the applicant had provided some explanation for the delay, it was not sufficient to warrant an extension of time under section 477(1) of the Migration Act 1958 (Cth). The court further found that the Minister's decision was based on a proper consideration of the relevant statutory provisions and was not tainted by any jurisdictional error. The applicant's arguments regarding the merits of the decision did not establish a basis for the court to intervene.

As a result, the court dismissed the application for judicial review and ordered the applicant to pay the first respondent's costs. The court's decision was grounded in the principle that applications for extensions of time must be made diligently, and the applicant had not met the required standard. The Minister's decision was upheld, and no further judicial review was granted.

Orders

Orders of the court

The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 30 May 2011.

The application is dismissed.

The applicant must pay the first respondent’s costs in the amount of $6,240.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

SZQGU v Minister for Immigration & Anor [2011] FMCA 718

Most Recent Citation

SZQGU v Minister for Immigration and Citizenship [2012] FCA 340

Cases Citing This Decision

SZQGV v Minister for Immigration [2012] FMCA 785
Citation 1 (Para 3)

…hat was determined by reference to the reasoning on grounds identical to grounds 1 to 5 in SZQGU v Minister for Immigration [11] and SZQDZ [12]. [11] [2011] FMCA 718 [12] [2011] FMCA 652- see SZQGV [2011] FMCA 743 at [47] to [51]…
SZRAE v Minister for Immigration [2012] FMCA 409
Citation 2 (Para 8)

…t in many judgments of this Court during 2011, and these were upheld on appeal, including in my judgment in SZQGU v Minister for Immigration & Anor [2011] FMCA 718 which was delivered on 23 September 2011 and upheld by Rares J in SZQGU v Minister for Immigration & Citizenship [2012] FCA 340. Examination of these g…
SZQGU v Minister for Immigration and Citizenship [2012] FCA 340
Citation 3

…zenship [2012] FCA 340 Citation: SZQGU v Minister for Immigration and Citizenship [2012] FCA 340 Appeal from: SZQGU v Minister for Immigration & Anor [2011] FMCA 718 Parties: SZQGU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 1784…
SZQJY v Minister for Immigration [2011] FMCA 969
Citation 4 (Para 9)

…& Anor [2011] FMCA 863 which was decided by myself after consideration of the views expressed by Smith FM in SZQGU v Minister for Immigration & Anor [2011] FMCA 718 where his Honour had also been taken to the extract from S152 quoted above. I said of his Honour’s decision at [8]: “[8]Having set out the relevant p…
SZQIA v Minister for Immigration [2011] FMCA 904
Citation 5 (Para 6)

…the absence of evidence from an applicant (cf. Alami v Minister for Immigration [2011] FMCA 623 at [68]-[71], and SZOGU v Minister for Immigration [2011] FMCA 718 at [35]-[41]). However, the delay in the present case was longer than in those cases. Other applicants without legal representatives have been able pro…
SZQKC v Minister for Immigration [2011] FMCA 848
Citation 6 (Para 3)

…FMCA 715 at [26]-[29]; SZQER v Minister for Immigration & Citizenship [2011] FMCA 738 at [23]-[29]; SZQGU v Minister for Immigration & Citizenship [2011] FMCA 718 at [15]-[24]; SZQGV v Minister for Immigration & Citizenship [2011] FMCA 743 at [19]-[26].…
SZQGV v Minister for Immigration & Anor [2011] FMCA 743
Citation 7 (Para 12)

…I have already noted, the issues raised in the present application were considered recently by this Court. In SZQGU v Minister for Immigration & Anor [2011] FMCA 718, Smith FM granted an extension of time but found no error in the Reviewer’s decision after considering propositions very similar to those being advan…

See all citing cases →

Cases Cited

GUO v Minister for Immigration [2018] FCCA 1400
Citation 1 (Para 5)

…ated persecution in the country of nationality amounts to a ‘real chance’ (see SZATV v Minister for Immigration (2007) 233 CLR 18 at [18] and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571‑572). Moreover, this test is not satisfied, if the decision-maker is satisfied that there is no such risk in one part of the country of na…
Alami v Minister for Immigration & Anor [2011] FMCA 623
Citation 2 (Para 4)

…subject to the time limit in relation to relief of the type sought in the present application (see Alami v Minister for Immigration & Citizenship [2011] FMCA 623 at [48]-[67]). It is necessary, therefore to consider whether I should grant an extension of about two months, which would render the present application…
SZPZI v Minister for Immigration & Anor [2011] FMCA 530
Citation 3 (Para 6)

…e the report on the same principles as would be a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]-[13]).…
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
Citation 4 (Para 2)

…e conclusion which would not obviously be open on the known material” (see Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [9]). Mr Packer was not otherwise obliged to “expose his mental processes or provisional views to comment before making the decision in question” (see Alp…
Plaintiff M61/2010E v Commonwealth [2010] HCA 41
Citation 5 (Para 3)

…of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 ( “Plaintiff M61” ). The Minister, however, submits that the application is rendered incompetent by s.477(1) of the Migration Act, unless time is extended un…
SZMUW v Minister for Immigration and Citizenship [2009] FCA 1444
Citation 6 (Para 5)

…k of the feared Convention-related persecution in the country of nationality amounts to a ‘real chance’ (see SZATV v Minister for Immigration (2007) 233 CLR 18 at [18] and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571‑572). Moreover, this test is not satisfied, if the decision-maker is sa…
SZNDL v Minister for Immigration and Citizenship [2009] FCA 568
Citation 7 (Para 2)

…ng the decision in question” (see Alphaone , cited with approval in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [29])…
SZLMD v Minister for Immigration and Citizenship [2008] FCA 1271
Citation 8 (Para 4)

…ce of State protection in the judgment of Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [21]: [21] Having regard to both the immediate and the wider context, a majority of the House of Lords in Horvath took the view that, in a case of…
MZWYM v Minister for Immigration and Citizenship [2007] FCA 1032
Citation 9 (Para 7)

…ared Convention–related persecution occurring to the claimant in that area (cf. Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [7], [69]-[70], [151]-[155], and [227]). The absence of adequate protection being provided by an internationally recognised government may make more lik…
Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953
Citation 10 (Para 8)

…I accept the submission of counsel for the Minister, that the opinion of Sundberg J in Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 remains consistent with later authorities, including Respondents S152/2003 . I would respectfully adopt his Honour’s reasoning in that case, which suggests…
Cole v Minister for Immigration and Multicultural Affairs [2001] FCA 76
Citation 11 (Para 9)

…to have been put to Heerey J in Cole v Minister for Immigration and Multicultural Affairs [2000] FCA 1375 or to the Full Court on appeal [2001] FCA 76, that case supports the view that so long as an area is safe for an applicant to return to, the consequence of which is that any fear of return he may have is no…
Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55
Citation 12 (Para 7)

…o be examined objectively to determine the real chance of the feared Convention–related persecution occurring to the claimant in that area (cf. Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [7], [69]-[70], [151]-[155], and [227]). The absence of adequate protection being provided by an internationally recognised government may mak…
Cole v Minister for Immigration and Multicultural Affairs [2000] FCA 1375
Citation 13 (Para 9)

…at present under consideration does not appear to have been put to Heerey J in Cole v Minister for Immigration and Multicultural Affairs [2000] FCA 1375 or to the Full Court on appeal [2001] FCA 76, that case supports the view that so long as an area is safe for an applicant to return to, the consequence of which…
Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9
Citation 14 (Para 10)

…on the ultimate decision of the Tribunal to affirm the delegate's decision. See Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 at 519-520. (See also Sundberg J’s reasoning at [13].)…
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Citation 15 (Para 5)

…mounts to a ‘real chance’ (see SZATV v Minister for Immigration (2007) 233 CLR 18 at [18] and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571‑572). Moreover, this test is not satisfied, if the decision-maker is satisfied that there is no such risk in one part of the country of nationality, p…

Legislation Cited

Migration Act 1958 (Cth) 36, 46A, 476, 476A, 477
6 mentions (from Para 1)