Uddin v MIAC - [2010] FCA 1282

FEDERAL COURT OF AUSTRALIA
SZNYL v Minister for Immigration and Citizenship [2010] FCA 1282

Citation: SZNYL v Minister for Immigration and Citizenship [2010] FCA 1282

Appeal from: SZNYL v Minister for Immigration & Anor [2010] FMCA 302

Parties: SZNYL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

File number(s): NSD 627 of 2010

Judge: NORTH J

Date of judgment: 9 November 2010

Date of hearing: 9 November 2010

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 29

Counsel for the Appellant: Ms Bridie Nolan

Counsel for the Respondents: Mr Justin Smith

Solicitor for the Respondents: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 627 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
SZNYL
Appellant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

NORTH J

DATE OF ORDER:

9 NOVEMBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the Federal Magistrates Court on 6 May 2010 be set aside.
3.In lieu of those orders, the following orders be made:
(a)a writ certiorari issue, directed to the second respondent, removing into the Court its decision, made on 8 September 2009, affirming the decision of a delegate of the first respondent not to grant a protection visa to the appellant, for the purpose of quashing that decision;

(b)the decision of the second respondent, made on 8 September 2009, affirming the decision of a delegate of the first respondent not to grant the appellant a protection visa, be quashed;

(c)a writ of mandamus issue, directed to the second respondent, requiring it to hear and determine the application of the appellant for review of the decision of a delegate of the first respondent refusing to grant him a protection visa.

4. The first respondent pay the appellant’s costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 627 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
SZNYL
Appellant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

NORTH J

DATE:

9 NOVEMBER 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 6 May 2010. The Federal Magistrate dismissed an application for a review of a decision of the Refugee Review Tribunal given on 8 September 2009. The Tribunal affirmed the decision of a delegate of the first respondent to refuse the appellant a protection visa.
The issues central to the appeal involve the application of s 424A and s 424AA of the Migration Act 1958 (Cth) (the Act).
The appellant is a Kenyan, who follows the Christian faith, and is from the…

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 Uddin v MIAC

Details

AGLC: Uddin v MIAC [2010] FCA 1282
Case: [2010] FCA 1282
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the appellant, SZNY, appealed against the decision of the Federal Magistrates Court, which had dismissed his application for review of a decision made by the Refugee Review Tribunal. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a protection visa. The central issues in the appeal involved the application of sections 424A and 424AA of the Migration Act 1958 (Cth). The appellant, a Kenyan Christian from the Kikuyu clan, claimed to fear persecution from the Mungiki, an anti-Christian organisation, for refusing to join them.

The court examined whether the Tribunal had adequately informed the appellant of the information it intended to rely on and its relevance. According to section 424A, the Tribunal must provide the applicant with particulars of any information that would be the reason, or part of the reason, for affirming the decision under review, ensuring the applicant understands its relevance and the consequences of it being relied upon. Section 424AA mandates that if an applicant is appearing before the Tribunal, the Tribunal may orally provide such information and must ensure the applicant understands its relevance and consequences.

The court found that the Tribunal had not adequately separated and explained the various pieces of information it intended to rely on, nor had it clearly conveyed the consequences of relying on each piece of information. The Tribunal's explanation was tangled and generalised, failing to ensure that the appellant understood the relevance and consequences of the information being relied upon. This failure amounted to jurisdictional error, and the appeal was allowed. The court set aside the orders made by the Federal Magistrates Court and ordered that the decision of the Tribunal be quashed. Additionally, it ordered that a writ of mandamus issue, directing the Tribunal to hear and determine the appellant's application for review.

Orders