Case: SZMPF v Minister for Immigration and Citizenship [2009] FMCA 273
Outcome: affirmed
way of a decision signed on 19 September 2007 the Tribunal affirmed the decision not to grant the visa. An application for review of the Tribunal's decision was dismissed by the Federal Magistrates Court of Australia on 14 April 2009: SZMPF v Minister for Immigration and Citizenship [2009] FMCA 273. The Notice of Appeal as filed in this Court on 1 May 2009 sets forth the sole ground of appeal to be resolved as follows (without alteration): Ground 1 The learned Federal Magistrate erred by holding that the Appellant's claim that the Tribunal failed to consider an integer of his case or a claim or issue critical to his case has not been made out. Particulars His Honour stated in [45] that the Tribunal had held that: In respect of the applicant's concerns regarding the death of his cousin, this matter has been the subject of extensive media reporting and there is evidence that the Fijian Human Rights Commission continues to operate. There is nothing to suggest that those who have reported the death or followed any investigation into it have in anyway been adversely of interest to military authorities. While there may be legitimate questions about how that investigation will proceed in the current environment, the Tribunal does not believe that any interest the applicant may have in this matter would put him at risk of harm on return. Notably, members of the applicant's family have remained in Fiji without further difficulties. In [47] his Honour held based on the Tribunal's above stated finding: This appears to me to address the applicant's claims that he would be in danger if he were to take action on his return in relation to the death of his cousin or were to pursue the investigation into his cousin's death...... ... ........ This was an erroneous finding because on a correct reading the Tribunal was not addressing that claim. The Tribunal only considered people in three categories: (a) those who reported the cousin's death; (b) those who followed up the investigation into it; and (c) members of the applicant's extended family in Fiji. The Tribunal did not consider someone in his position who: (a) expressed an intention to take legal action against the army when he returns to Fiji; and (b) expressed interest in the progress of the investigation into his cousin's death. This is apparently the same ground that was unsuccessfully relied upon before the Federal Magistrate. The Federal Magistrate reviewed the reasons for decision of the Tribunal and relevantly concluded: [46] ... I am satisfied that: (a) the applicant's claims were put before the Tribunal; and (b) those claims were considered by the Tribunal. The Federal Magistrate then proceeded to conclude that the Tribunal had committed no jurisdictional error and dismissed the application. The Appellant appeared before this Court on 6 August 2009. He was then represented by a solicitor. The case advanced both before the Federal Magistrate and this Court on appeal sought to draw a distinction between an administrative tribunal failing to advert to evidence or making an error of fact based upon evidence (on the one hand) and a tribunal failing to consider a contention advanced before it for resolution (on the other).