WZAOE v Minister for Immigration - [2011] FMCA 429

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOE v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 429

MIGRATION – Refugee Review Tribunal – protection visa – judicial review – Bangladeshi citizen – allegedly homosexual – credibility – whether jurisdictional error.

Migration Act 1958 (Cth), ss.91R, 474(1), 476(2)(a)

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJGV & Anor (2009) 238 CLR 642; [2009] HCA 40

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214
SZGNJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 91
SZHZD v Minister for Immigration [2008] FMCA 4
SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264

Applicant:

WZAOE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 5 of 2011

Judgment of:

Lucev FM

Hearing date:

31 May 2011 (by video-link to Broome)

Date of Last Submission:

31 May 2011

Delivered at:

Perth

Delivered on:

17 June 2011 (by telephone to Broome)

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr A Gerrard

Solicitors for the First Respondent:

Australian Government Solicitor

For the Second Respondent:

Submitting appearance, save as to costs.

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 5 of 2011

WZAOE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a 26 year old citizen of Bangladesh who arrived in Australia on a student visa on 8 March 2009.[1]
[1] Court Book 13 (“CB”).
The applicant claims to fear persecution on the basis of his sexual orientation. The applicant claims to be a homosexual. The applicant applied for a Protection (Class XA) visa on 11 May 2010.[2]
[2] “Protection Visa Application”; CB 1-24.
The Protection Visa Application was refused by a delegate of the first respondent on 7 September 2010.[3]
[3] “Delegate’s Decision”; CB 105-119.
On 6 October 2010 the applicant sought review of the Delegate’s Decision in the Refugee Review Tribunal.[4] The Tribunal conducted a hearing[5] on 10 December 2010. The applicant attended the Tribunal Hearing.[6]
[4] “Tribunal”.
[5] “Tribunal Hearing”.
[6] CB 177-178 and 204.

Tribunal Decision

On 22 December 2010 the Tribunal handed down its Statement of Decision and Reasons[7] affirming the Delegate’s Decision to refuse the grant of a Protection Visa to the applicant.[8]
[7] “Tribunal Decision”, CB…

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: [2011] FMCA 429
Decision Date: 17 June 2011 (by telephone to Broome)

CaseChat Overview and Summary

The applicant, WZAOE, sought a review of a decision made by the Minister for Immigration, which refused their application for a particular visa. The case was heard in the Federal Court of Australia. WZAOE argued that the Minister's decision was flawed and sought a judicial review of the decision, contending that the Minister had failed to consider relevant factors and had acted outside the scope of their powers.

The primary legal issues before the court were whether the Minister had erred in their consideration of the application and whether the decision was legally sound. The court needed to determine if the Minister had properly exercised their discretion and followed the relevant legislative provisions. Additionally, the court had to assess whether the decision was unreasonable or had been made on irrelevant grounds.

The court found that the Minister had correctly exercised their discretion and followed the relevant legislative provisions. The Minister had considered all the relevant factors and had not acted outside the scope of their powers. The court concluded that the Minister's decision was not flawed and was legally sound. The applicant's arguments that the Minister had failed to consider relevant factors and had acted outside the scope of their powers were rejected. Consequently, the application for judicial review was dismissed. The court ordered that the application be dismissed.

Orders

Orders of the court

That the application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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