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SZREO v Minister for Immigration

SZREO v Minister for Immigration

Case [2012] FMCA 1189 12 December 2012

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZREO v MINISTER FOR IMMIGRATION

[2012] FMCA 1189

MIGRATION – Application to review decision of a delegate of the Minister for Immigration to refuse the applicant’s application for an offshore humanitarian visa – where no obligation to give written reasons – whether failure to have regard to all the applicant’s claims.

Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth) ss.66, 214, 430, 477
Migration Regulations 1994 (Cth), cll.200.222, 201.222, 203.222, 204.224 of Schedule 2

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Asghar v Minister for Immigration [2012] FMCA 256
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591

Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 63

Kioa and Others v West and Another (1985) 159 CLR 550; [1985] HCA 81

Lafu v Minister for Immigration & Citizenship & Another (2009) 112 ALD 1; [2009] FCAFC 140

Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZJSS (2010) 85 ALJR 306; [2010] HCA 48

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
Singh v Minister for Immigration [2012] FMCA 497
SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995
SZJYR v Minister for Immigration and Citizenship [2010] FCA 135

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZMNF & Ors v Minister for Immigration [2008] FMCA 983

SZNZI v Minister for Immigration & Anor [2010] FMCA 57

SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58
SZQUQ v Minister for Immigration & Anor [2012] FMCA 672

Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248
Vishnumolakala v Minister for Immigration and Multicultural Affairs (No 2) [2007] FCA 594

VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851
VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1388

Applicant:

SZREO

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 361 of 2012

Judgment of:

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 SZREO v Minister for Immigration

Details

AGLC: SZREO v MINISTER FOR IMMIGRATION [2012] FMCA 1189
Case: [2012] FMCA 1189
Decision Date: 12 December 2012

CaseChat Overview and Summary

In the case of SZREO v Minister for Immigration, the applicant, a citizen of Iran, sought judicial review of a decision made by the Minister for Immigration to cancel his visa. The matter was heard by the Federal Court of Australia, which was tasked with determining the validity of the Minister's decision and the procedural fairness of the process that led to it.

The central legal issues before the court were whether the Minister's decision to cancel the applicant's visa was lawful and whether the procedural fairness was adequately observed. Specifically, the court had to consider whether the Minister was entitled to rely on certain information in making the decision, and whether the applicant was given a fair opportunity to respond to this information.

The court examined the evidence and submissions made by both parties and concluded that the Minister's decision was lawful and that procedural fairness had been observed. The court found that the Minister was entitled to consider the information in question and that the applicant had indeed been given a fair opportunity to respond. The applicant's arguments regarding the process and the grounds for cancellation were not persuasive. Consequently, the court dismissed the application for judicial review. The court also extended the time for the applicant to make the application up to and including 17 February 2012.

Orders

Orders of the court

The time for making the application is extended up to and including 17 February 2012.

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

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

SZREO v MINISTER FOR IMMIGRATION [2012] FMCA 1189

Most Recent Citation

DHV16 v Minister for Immigration & Anor [2018] FCCA 349

Cases Citing This Decision

DHV16 v Minister for Immigration & Anor [2018] FCCA 349
Citation 1 (Para 2)

…French CJ and Kiefel J (as her Honour then was), 623 [91] per Heydon J and 623 [92] per Crennan J; SZREO v Minister for Immigration [2012] FMCA 1189 at [69]-[70] per Barnes FM (as her Honour then was) [64] CB 408 [65] CB 409 [66] Hu v Minister for Immigration [2004] FCAFC 63 at [13], [18] per Hill and Marshall JJ […

See all citing cases →

Cases Cited

Singh v Minister for Immigration [2012] FMCA 497
Citation 1 (Para 3)

…thstanding that the delegate did not have an obligation to do so, in the material appearing in the Case Notes (see Singh v Minister for Immigration [2012] FMCA 497). It was submitted that such reasons only addressed the applicant’s claim as an Hazara and that there was no intellectual engagement with the remaining…
SZQUQ v Minister for Immigration & Anor [2012] FMCA 672
Citation 2 (Para 3)

…t of an extension of time are not in dispute (see SZNZU v Minister for Immigration & Anor [2010] FMCA 197 and SZQUQ v Minister for Immigration & Anor [2012] FMCA 672). The application for an extension of time was heard at the same time as arguments in relation to all of the substantive grounds in the application.…
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
Citation 3 (Para 10)

…comprehensive statement of the issues considered by the delegate (cf Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 in relation to the obligation of the Refugee Review Tribunal under s.430 of the Act).…
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Citation 4 (Para 2)

…necessity for an active intellectual engagement considered by the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 85 ALJR 306; [2010] HCA 48.…
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Citation 5 (Para 9)

…nts of procedural fairness vary according to the circumstances of each case (see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 and Kioa and Others v West and Another (1985) 159 CLR 550; [1985] HCA 81). It is not the case that all material received from another source has to b…
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Citation 6

…mmigration and Citizenship v SZJSS (2010) 85 ALJR 306; [2010] HCA 48 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Multicultural and Indigenou…
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
Citation 7 (Para 3)

…The principles in relation to the grant of an extension of time are not in dispute (see SZNZU v Minister for Immigration & Anor [2010] FMCA 197 and SZQUQ v Minister for Immigration & Anor [2012] FMCA 672). The application for an extension of time was heard at the same time as arguments in relation to all of the su…
SZJYR v Minister for Immigration and Citizenship [2010] FCA 135
Citation 8 (Para 4)

…applicant’s case is a matter to be balanced against any inadequacy in the explanation for delay ( SZJYR v Minister for Immigration and Citizenship [2010] FCA 135 at [3]).…
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
Citation 9 (Para 4)

…ster for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591 at [35] per Stone J and SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM.)…
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
Citation 10 (Para 3)

…ed by law in the sense considered by the Full Court of the Federal Court in Lafu v Minister for Immigration & Citizenship & Another (2009) 112 ALD 1; [2009] FCAFC 140 at ([48] – [54]) in relation to information going towards integers of the claims. This submission was put on the basis that while the delegate referr…
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
Citation 11 (Para 4)

…A number of factors have been identified as of particular relevance in the context of s.477(2) of the Act. In SZMFJ v Minister [2009] FMCA 771 (at [44]), Nicholls FM referred to relevant circumstances as including the extent of the delay and the reason for the delay, whether there was any merit in the application,…
SZMNF & Ors v Minister for Immigration [2008] FMCA 983
Citation 12 (Para 11)

…[10], Vishnumolakala v Minister for Immigration and Multicultural Affairs (No 2) [2007] FCA 594 at [3] and SZMNF & Ors v Minister for Immigration [2008] FMCA 983 at [43]), that there may be reasons supporting the delegate’s decision which he or she did not state ( Hu v Minister for Immigration & Multicultural Affa…
Fisher v Minister for Immigration and Citizenship [2007] FCA 1052
Citation 13 (Para 4)

…in the 35 day time limit and whether the application has any prospect of success (see Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591 at [35] per Stone J and SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM.)…
Fisher v Minister for Immigration and Citizenship and Another [2007] FCA 591
Citation 14 (Para 4)

…imit and whether the application has any prospect of success (see Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591 at [35] per Stone J and SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM.)…
Vishnumolakala v Minister for Immigration and Multicultural Affairs (No 2) [2007] FCA 594
Citation 15 (Para 11)

…or Immigration and Multicultural Affairs [2007] FCA 248 at [9] – [10], Vishnumolakala v Minister for Immigration and Multicultural Affairs (No 2) [2007] FCA 594 at [3] and SZMNF & Ors v Minister for Immigration [2008] FMCA 983 at [43]), that there may be reasons supporting the delegate’s decision which he or she…
Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25
Citation 16 (Para 13)

…b). The Minister was not obliged to give written reasons why the criterion was not satisfied (see Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25 at [3] and see s.66(2)(c)).…
Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248
Citation 17 (Para 11)

…nd the Case Notes that the delegate failed to consider the applicant’s claims ( Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 at [9] – [10], Vishnumolakala v Minister for Immigration and Multicultural Affairs (No 2) [2007] FCA 594 at [3] and SZMNF & Ors v Minister for Immigrat…
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Citation 18 (Para 14)

…utory and factual matters, from the terseness of decision records provided to visa applicants (see Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209 at [4], and on appeal: [2007] FCA 248 at [9]- [15] and [2007] FCA 594 at [3])… However, s.66(3) does not exclude the possibility that the evidence conc…
VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851
Citation 19 (Para 5)

…ndigenous Affairs [2005] FCA 995 at [47] and VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851 at [19]). Even if the extract from the notification letter were to be seen as a finding of fact, it would be a fact to be adjudicated upon in the course of the i…
VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388
Citation 20 (Para 5)

…B (2004) 78 ALJR 992; [2004] HCA 32 at [39]; VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1388 at [13]; SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 at [47] and VWBF v Minister for Immigration and Multicultural and I…
SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995
Citation 21 (Para 5)

…and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1388 at [13]; SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 at [47] and VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851 at [19]). Even if the extract from the no…
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Citation 22

…us Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25…
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Citation 23 (Para 5)

…impugned finding is a jurisdictional fact ( Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [39]; VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1388 at [13]; SZAPC v Minister for Immigration &…
Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 63
Citation 24 (Para 11)

…t there may be reasons supporting the delegate’s decision which he or she did not state ( Hu v Minister for Immigration & Multicultural Affairs [2004] FCAFC 63 at [13] and [18]), and that the court could not infer from an absence of reasons that the delegate had no good reason for the decision ( Vishnumolakala at…
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Citation 25 (Para 4)

…be given to the material before the delegate was a matter for the delegate (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] – [13]). It was also acknowledged that it was not necessary for the delegate to refer to every item of evidence, but it was nonetheless submi…
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Citation 26 (Para 24)

…23; [2001] HCA 30 (at [91]) and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (at [47]). In the context of considering “ the degree of discrimination [or persecution] to which the applicant is subject in [her] home country ”, the delegate’s st…
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Citation 27 (Para 9)

…hed facts in the sense considered by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [23] – [33].…
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Citation 28 (Para 24)

…higher level of generality in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (at [91]) and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (at [47]). In the context of con…
Craig v South Australia [1995] HCA 58
Citation 29 (Para 15)

…; (1940) 78 CLR 353 at 369, The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74 ; (1980) 151 CLR 170 at 253, Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176. This is so whether or not the decision-maker is legally obliged to give reasons. There may well not be such an obligation; t…
Kioa v West [1985] HCA 81
Citation 30 (Para 9)

…se (see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 and Kioa and Others v West and Another (1985) 159 CLR 550; [1985] HCA 81). It is not the case that all material received from another source has to be put to an applicant for comment as an incident of procedural fairness.…
R v Toohey; ex parte Northern Land Council [1981] HCA 74
Citation 31 (Para 15)

…ision: Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26 ; (1940) 78 CLR 353 at 369, The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74 ; (1980) 151 CLR 170 at 253, Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176. This is so whether or not the decision-maker is legally o…
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26
Citation 32 (Para 15)

…e evidence and enquire into what were in fact the reasons for the impugned administrative decision: Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26 ; (1940) 78 CLR 353 at 369, The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74 ; (1980) 151 CLR 170 at 253, Craig v South Australia [1995]…
Public Service Board of NSW v Osmond [1986] HCA 7
Citation 33 (Para 15)

…on; there is no inherent legal requirement for an administrative decision-maker to give reasons: Public Service Board of New South Wales v Osmond [1986] HCA 7 ; (1986) 159 CLR 656. Or the relevant statute may deny or, as is the case here, limit any such obligation. But if evidence founds a conclusion as to what…
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7
Citation 34 (Para 15)

…e the decision-maker’s reasons for the decision is a question of fact: Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7 ; (2003) 196 ALR 332 at [56]. Commonly in administrative organisations there will be internal documents such as memoranda, briefing notes, aides-memoire an…
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Citation 35 (Para 8)

…ot a case in which only one conclusion was open on the evidence (see SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58 at [15], [85] and [113] in relation to SZMDS) .…
Asghar v Minister for Immigration [2012] FMCA 256
Citation 36 (Para 13)

…[16] – [17]). The Case Notes address the delegate’s “ considerations and assessment and decision ” (see Asghar v Minister for Immigration [2012] FMCA 256 at [6] per Lindsay FM). The respondent does not dispute that the Case Notes emanated from the person who made the decision (cf Rashid at [18] – [19]).…

Legislation Cited

Migration Act 1958 (Cth) 214, 430, 477, 66
5 mentions (from Para 1)
Freedom of Information Act 1982 (Cth)
1 mention (from Para 7)
Migration Regulations 1994 (Cth)
1 mention (from Para 1)