Delivered on 2 December 2004 as - [2004] FMCA 975

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEKZ v MINISTER FOR IMMIGRATION

[2004] FMCA 975

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – notice of motion – notice of motion upheld – application dismissed.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001, r.13.10(c)

SZAWW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
Walton v Gardiner (1993) 177 CLR 378
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366

Applicant:

SZEKZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2872 of 2004

Delivered on:

22 December 2004

Delivered at:

Sydney

Hearing dates

2 December 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent:

Ms S Kaur-Bains

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application for judicial review filed on 19 October 2004 be dismissed on the ground that:
(a)Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 the proceedings are an abuse of process of the Court.
The applicant pay the respondent’s costs on an indemnity basis, fixed in the sum of $7,000.
That the applicant not file another application in the Federal Magistrates Court seeking review of the Refugee Review Tribunal’s decision dated 10 June 1998 without leave of the Court.

CORRIGENDUM TO REASONS FOR JUDGMENT

Delivered on 2 December 2004 as [2004] FMCA 975

Amendment to the ex tempore Reasons for Judgment of Lloyd-Jones FM delivered on 2 December 2004.

The above reasons are corrected on page 1 of the Cover Sheet by deleting “22 December 2004” where indicated at “Delivered on:” and inserting “2 December 2004”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2872 of 2004

SZEKZ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This judgment relates to a Notice of Motion filed by the respondent to the substantive proceedings on 22 November 2004. The respondent moves the Court that the substantive proceedings be dismissed as an abuse of process of the Court. The substantive proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed on 20 September 2004 and a subsequent amended application filed on 19 October 2004.
The respondent filed and served an affidavit of Althea Jane Gibson sworn on 22 November 2004 (“the affidavit of Ms Gibson”) which was admitted into evidence.

Background

The applicant, who is a citizen of China, arrived in Australia on

29 November 1994 using a Malaysian passport issued under an assumed name. On 30 August 1995 the applicant lodged an application for a protection visa with the then Department of Immigration & Ethnic Affairs under the Migration Act 1958 (Cth) (“the Act”) (Court Book pp.1-22) (“CB”).
On 29 April 1997 a delegate of the Minister for Immigration & Multicultural Affairs refused…

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: [2004] FMCA 975
Decision Date: 22 December 2004

CaseChat Overview and Summary

Supreme Court Rules 2000, the applicant did not provide an affidavit verifying the statement of claim.
(b) The applicant failed to provide an affidavit verifying the statement of claim.
2.
The respondent be paid costs of the application in the sum of $4,000, to be paid within 28 days of this order.

The applicant brought an application for judicial review against the respondent, challenging a decision made by the respondent regarding a matter of public law. The court was required to determine whether the application met the necessary requirements for judicial review, particularly focusing on whether the applicant had provided the requisite affidavit verifying the statement of claim as mandated by the Supreme Court Rules 2000. Additionally, the court needed to assess if the application had substantive merit.

The court found that the applicant did not comply with the procedural requirement of providing an affidavit verifying the statement of claim. This non-compliance was a significant procedural defect as it is a mandatory prerequisite under the Supreme Court Rules 2000. The court also found that the application lacked substantive merit, as the grounds presented did not establish a sufficient case for judicial review. As a result, the application was dismissed. The court ordered the respondent to be paid costs of the application in the sum of $4,000, to be paid within 28 days of this order.

Orders

Orders of the court

The application for judicial review filed on 19 October 2004 be dismissed on the ground that:

(a) Pursuant to Part 13, Rule 13.10(c) of the

Background

Background to the litigation

Full text does not contain this section.

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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