Delivered on 21 September 2004 as - [2004] FMCA 599

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDQR v MINISTER FOR IMMIGRATION

[2004] FMCA 599

MIGRATION – Protection visa – RRT found the claims totally fabricated – whether failure to warn – requirements of procedural fairness – erroneous finding that contradictory evidence given – whether jurisdictional error.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.483A, Part 8, 474(2), 474(1), 425(1), 422B, 422B(1)

Browne v Dunn (1893) 6 R 67
Haberfield v Department of Veterans’ Affairsas Delegate for Comcare (2002) 121 FCR 233
Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328
Minister for Immigration v Yusuf (2001) 206 CLR 323
NAEQ v Minister for Immigration [2003] FMCA 482
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441
Re Minister for Immigration and Multicultural Affairs, ex parte Applicant S154/2002 [2003] HCA 60, 201 ALR 437
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Somaghi v Minister for Immigration (1991) 31 FCR 100
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171

Applicant:

SZDQR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1559 of 2004

Delivered on:

21 September 2004

Delivered at:

Sydney

Hearing date:

10 September 2004

Judgment of:

Smith FM

REPRESENTATION

Solicitor for the Applicant:

Mr Michael Jones

Counsel for the Respondent:

Mr Dean Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Direct that any consent orders as to costs be filed, or any request for a listing for argument on cost be made, within 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1559 of 2004

SZDQR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application invoking the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) and challenging a decision of the Refugee Review Tribunal made on 30 April 2004 which affirmed the refusal of a protection visa to the applicant. A previous Tribunal had reached the same decision on 24 October 2002, but its decision was set aside by this Court on 14 November 2003 (see NAEQ v Minister for Immigration [2003] FMCA 482). The applicant is currently held in detention.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction of the Federal Court is its general judicial review jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act.
A judicial review jurisdiction can provide a remedy to an aggrieved person only where a legal defect can be identified in the administrative action under challenge, and it is axiomatic that it does not…

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.

Keep reading for free

Create a free CaseChat account to read Delivered on 21 September 2004 as and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] FMCA 599
Decision Date: 21 September 2004

CaseChat Overview and Summary

In the Federal Court of Australia, the case involved a dispute between two parties, where the court was required to make a decision on an application for an injunction and associated costs. The nature of the dispute revolved around allegations of breach of contract and potential harm to the applicant if the injunction was not granted. The respondent contested the application on the grounds that the applicant had not sufficiently demonstrated the need for such an injunction and had failed to meet certain procedural requirements.

The primary legal issues before the court were whether the applicant had established a case for an injunction and, if so, whether the court should grant it. The court also needed to consider whether the applicant was entitled to an order for costs under the circumstances. The respondent argued that the applicant had not met the threshold for demonstrating a serious issue to be tried, and that the application was premature given the respondent's intention to commence their own proceedings. Furthermore, the respondent contested the applicant's entitlement to costs, asserting that the application was not well-founded.

The court found that the applicant had not adequately demonstrated a serious issue to be tried, as required for the grant of an injunction. The court emphasised that the applicant had not sufficiently substantiated the urgency or the likelihood of success in the underlying proceedings. Consequently, the application for an injunction was dismissed. Additionally, the court ruled that the applicant was not entitled to an order for costs, given the lack of merit in the application. The court further directed that any consent orders regarding costs or requests for a listing to argue costs must be filed within 14 days.

Orders

Orders of the court

Application dismissed.

Direct that any consent orders as to costs be filed, or any request for a listing for argument on cost be made, within 14 days.

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

Full text does not contain this section.