SZRDH v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRDH v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 588

MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal breached s.424A of the Migration Act 1958, considered irrelevant material, ignored relevant material and otherwise denied the applicant procedural fairness.

Migration Act 1958, ss.422B, 424AA, 424A, 425, 474
Migration Regulations 1994

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZMMP v Minister for Immigration & Citizenship (2009) 174 FCR 514

Applicant: SZRDH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 292 of 2012

Judgment of: Cameron FM

Hearing dates: 15 May 2012, 2 July 2012

Date of Last Submission: 2 July 2012

Delivered at: Sydney

Delivered on: 13 July 2012

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr D. Godwin

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 292 of 2012

SZRDH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Cuba who arrived in Australia on 25 June 2010. On 30 September 2011 he applied to the Department of Immigration and Citizenship for a protection visa, alleging that he feared persecution in Cuba because of his political opinion and religion. On 7 November 2011 his application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-21 of the Tribunal’s decision. Relevant factual allegations are summarised below.

2. The applicant arrived in Australia on a spouse visa. Included in his application for a spouse visa was a “Criminal Records Certificate” issued by the Cuban Ministry of Justice dated 29 March 2010 certifying that there were no existing criminal records in relation to him. The application also included a supporting email from the applicant’s former wife dated 24 March 2010 stating that the applicant had obtained a “Permission to Reside Exterior” (“PRE”) from the Cuban government. The applicant’s former wife stated that whilst it often took up to a year to obtain a PRE, the applicant obtained his within a…