SZQWP v MIAC - [2012] FMCA 532

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQWP v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 532

MIGRATION – Review of decision of Refugee Review Tribunal – whether finding on the Indo-Nepal Treaty of Peace and Friendship a finding of fact – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 476

SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891
SZHYB v Minister for Immigration & Anor [2007] FMCA 311
Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154
SZHWI v Minister for Immigration & Anor [2006] FMCA 1924
SZOSU v Minister for Immigration & Anor [2011] FMCA 132
SZGXK v Minister for Immigration & Anor [2008] FMCA 822

Applicant:

SZQWP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2687 of 2011

Judgment of:

Nicholls FM

Hearing date:

19 June 2012

Date of Last Submission:

19 June 2012

Delivered at:

Sydney

Delivered on:

19 June 2012

REPRESENTATION

The Applicant:

In Person

Appearing for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application made on 24 November 2011, and amended on 7 March 2012, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2687of 2011

SZQWP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), made on 24 November 2011 and amended on 7 March 2012, which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 21 October 2011, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

The Minister has put a bundle of relevant documents before the Court (Court Book – “CB”). The following background is derived from that material.
The applicant is a citizen of Nepal (CB 1). He arrived in Australia on 7 May 2008 on a student visa (CB 3). On 4 January 2011 he applied for a protection visa (CB 1 to CB 34, with annexures).
His claims to protection were set out both in the relevant application form and in a separate statement dated 29 December 2010 which accompanied the application (CB 7 to CB 10 and CB 25 to CB 27). Those claims can relevantly be summarised as follows:
(1)The applicant was an active member of the Nationalist Student Organisation (“NSO”), a pro-monarchy student organisation in Nepal. He was also involved with a particular political party, the Rastriya Prajatantra Party (“RPP”).
(2)As a result of his involvement in those organisations, and his personal views supporting human rights and democracy, he was harassed and targeted by Maoist activists at his college in Nepal. He was threatened with physical assault if he did not join the Maoists.
(3)In August 2007, having…

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 SZQWP v MIAC

Details

AGLC: SZQWP v MIAC [2012] FMCA 532
Case: [2012] FMCA 532
Decision Date: 19 June 2012

CaseChat Overview and Summary

SZQWP was the applicant in this case, with MIAC being the first respondent. The dispute arose from a decision made by MIAC to cancel an approval previously granted to the applicant for the supply of services. The applicant sought a review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matter was heard in the Federal Court of Australia.

The primary legal issues the court needed to address were whether the decision to cancel the approval was unreasonable and whether the applicant was entitled to an order for review. The court examined whether the decision-maker had considered all relevant factors, whether there was an error in the application of the law, and whether the decision was outside the scope of the powers conferred by the relevant legislation. The court also considered whether the decision was so unreasonable that no reasonable person could have made it.

In delivering the judgment, the court found that the decision to cancel the approval was not unreasonable. The court held that the decision-maker had considered all relevant factors and that there was no error in the application of the law. The court also determined that the decision was within the scope of the powers conferred by the relevant legislation. The court further held that the decision was not so unreasonable that no reasonable person could have made it. Consequently, the application for review was dismissed, and the applicant was ordered to pay the first respondent’s costs.

Orders

Orders of the court

The application made on 24 November 2011, and amended on 7 March 2012, is dismissed.

The applicant pay the first respondent’s costs set in the amount of $5,000.00.

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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