SZTTI v Minister for IMMIGRATON - [2015] FCCA 236

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTTI & ORS v MINISTER FOR IMMIGRATON

[2015] FCCA 236

Catchwords:
MIGRATION – Application for review of the decision of the Minister’s delegate – whether the delegate correctly applied s.48A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 46, 47, 48A, 48B, 476

SZGIZ v Minister For Immigration & Citizenship [2013] FCAFC 71
SZRSN v Minister for Immigration and Border Protection [2014] FCA 527
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244

First Applicant:

Second Applicant

Third Applicant

Fourth Applicant

SZTTI

SZTTJ

SZTTK

SZTTL

Respondent:

MINISTER FOR IMMIGRATON & BORDER PROTECTION

File Number:

SYG 37 of 2014

Judgment of:

Judge Nicholls

Hearing date:

7 August 2014

Date of Last Submission:

7 August 2014

Delivered at:

Sydney

Delivered on:

6 February 2015

REPRESENTATION

Solicitors for the Applicant:

Mr T Savu of Savu Esq, Lawyer & Mediator

Counsel for the Respondent:

Mr D Hughes

Solicitors for the Respondent:

DLA Piper

ORDERS

The application made on 8 January 2014 and amended on 6 May 2014 is dismissed.
The first and second applicants pay the respondent’s costs set in the amount of $ 6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 37 of 2014

SZTTI

First Applicant

SZTTJ
Second Applicant

SZTTK
Third Applicant

SZTTL
Fourth Applicant

And

MINISTER FOR IMMIGRATON & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an application made on 8 January 2014 and amended on 6 May 2014 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision made by the delegate of the respondent Minister on 3 January 2014 that applications made by the applicants now before the Court for protection visas were not valid.

Background

In making the application to the Court, the applicants were represented by “Silva Solicitors”, who also assisted the applicants with the application for the protection visas made on 3 January 2014 (CB 156 to CB 303), and which ultimately resulted in the decision which is the subject of the review in these proceedings.
On 25 February 2014, I made orders for the conduct of this matter before the Court. These orders included that an agreed statement of facts was to be filed, and provided for the filing of any amended application. The matter was set down for final hearing on 7 August 2014.
An agreed statement of facts was filed on 6 March 2014. It was signed by solicitors acting for the respective parties at the time, and is in the following terms ([1] – [10] of the Agreed Statement of Facts):
“1. The applicants are Fijian nationals.
2. The second named applicant last arrived in Australia on 20 December 2011 on a Tourist (Subclass 676)…

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.

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Details

Case: [2015] FCCA 236
Decision Date: 6 February 2015

CaseChat Overview and Summary

The Federal Circuit Court considered an application for review of a decision made by the Minister's delegate concerning migration law. The applicants, identified as SZTTI and another, sought to challenge the delegate's decision.

The central legal issue before the Court was whether the Minister's delegate had correctly applied section 48A of the *Migration Act 1958* (Cth) in reaching their decision. The applicants contended that there had been a jurisdictional error in this application.

Judge Nicholls found that no jurisdictional error had occurred. The Court's reasoning, though not detailed in the provided text, led to the conclusion that the delegate's application of section 48A was lawful. Consequently, the application was dismissed.

The Court ordered that the application made on 8 January 2014 and amended on 6 May 2014 be dismissed. Furthermore, the first and second applicants were ordered to pay the respondent's costs in the amount of $6,646.00.

Orders

Orders of the court

1. The application made on 8 January 2014 and amended on 6 May 2014 is dismissed.

2. The first and second applicants pay the respondent’s costs set in the amount of $ 6646.00.

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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