SZEGA v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Federal Magistrate Lloyd-Jones, delivered on 24 March 2005, dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"), which, in turn, affirmed a decision of a delegate of the Minister not to grant protection visas to the appellant husband and wife. 2 Having considered the reasons for judgment of the learned Federal Magistrate, I am satisfied that an error of law is demonstrated in his Honour's decision. 3 The error of law is that the learned Federal Magistrate failed to consider or reason through the question of whether grounds existed under the Refugee Convention for the granting of a protection visa. It appears to me, and there is an indication in the judgment itself, that the learned Federal Magistrate did not approach this question on the basis of reviewing the decision of the Tribunal, but rather, both in terms of the manner of expression and the substance of what was done, making findings in relation to the evidence which was before the Tribunal. This is apparent from the express wording of the learned Federal Magistrate's determination in relation to the disagreement between the appellant husband and the family of the appellant wife regarding the marriage of the appellants. At [16], his Honour stated: 'Similarly in applying the reasoning of the Federal Magistrate in M41 of 2002 to the present case, I find the disagreement between the applicants and the wife's family over the wife's parents' disapproval of the applicants' marriage to be a purely interfamily dispute and one that does not engage the provisions of the Refugee Convention.' (Emphasis added) These words are not simply an infelicitous form of expression. No reasoning is disclosed as to the basis on which the learned Federal Magistrate reviewed the decision of the Tribunal in relation to this matter. 4 The balance of the grounds raised in the Further Amended Application filed in the Federal Magistrates Court on 8 February 2005 under the Judiciary Act 1903 (Cth) and the appellants' written submissions, including questions as to the social group to which the appellants belonged, their political opinions and ability to relocate, are dealt with by the learned Federal Magistrate in a broad, generalised manner in [18] of the decision under review in these terms: 'The balance of grounds in the submissions depends on the argument that the circumstances of this application are covered by the Convention. The arguments are based on the criteria that the applicants satisfy the various requirements under the Convention and the supporting authorities for those contentions. I agree with the Tribunal's findings set out above that the applicants do not have a well founded fear for a Convention reason and in the circumstances of this case I find that s. 91S does not apply to the fear of persecution held by the applicants.' (Emphasis added) There is a leap from a generalised reference to the grounds in the submissions to an agreement with the Tribunal's findings. The learned Federal Magistrate comes to a general conclusion that the appellants do not comply with the requirements of the Refugee Convention and consequently the application should be dismissed. The question is adduced at the highest level of generalisation and does not examine the particular circumstances of the case. 5 There are two basic grounds on which I consider that there have been significant errors of law by the learned Federal Magistrate. First, the learned Federal Magistrate failed to review, in any meaningful sense, the decision of the Tribunal, rather than simply reaching a conclusion and expressing a finding. Second, the learned Federal Magistrate dismissed the balance of the grounds contained in the written submissions without dealing with them in any proper way. As I have said above, the learned Federal Magistrate did not deal with the matters raised by the appellants in their Further Amended Application or written submissions, particularly in relation to the issues of the appellants' social group, relocation and political opinion. 6 Accordingly, I find that there are errors of law that warrant the setting aside of the judgment and orders of the learned Federal Magistrate in this matter. 7 The next question which arises is whether, as a matter of discretion, I ought to remit the matter to the learned Federal Magistrate for consideration in accordance with the legal principles to be applied on judicial review by a Federal Magistrate, which have not been followed in the present case, or whether I should myself review the decision of the Tribunal. 8 In the circumstances, I do not think it is appropriate for me to embark on a review of the decision of the Tribunal and to make a determination in relation to that decision. I should add, however, that I am not persuaded that the matters raised by the appellant in this matter lack substance. I therefore consider that the appellant is entitled to have the matter reconsidered in accordance with law. 9 For the reasons set out above, the orders I make are that the orders of Federal Magistrate Lloyd-Jones made on 24 March 2005 should be set aside, the matter should be remitted for further consideration and the respondent should pay the costs of the appellant on this appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.