SZAJB v Minister for Immigration - [2007] FMCA 1383

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAJB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1383

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – previous applications – res judicata.

PRACTICE & PROCEDURE – Abuse of process – incompetent – out of time.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.474, 477

Federal Magistrates Court Rules 2001, r.13.11

SZAJB v Minister for Immigration [2004] FMCA 86
SZAJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 782
SZDPF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 85
SZAJB v Minister for Immigration & Anor [2006] FMCA 964

Applicant:

SZAJB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1905 of 2007

Judgment of:

Scarlett FM

Hearing date:

9 July 2007

Date of last submission:

9 July 2007

Delivered at:

Sydney

Delivered on:

9 July 2007

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Mr Dooley

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application is dismissed as incompetent.
The Application is dismissed as an abuse of process.
The Applicant is to pay the First Respondent’s costs on an indemnity basis fixed in the sum of $1,300.00.
No further application for review of the decision of the Refugee Review Tribunal made on 28 February 2003 and handed down on

21 March 2003 is to be accepted for filing without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1905 of 2007

SZAJB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision of the Refugee Review Tribunal that was made on 28^th February 2003 and handed down on 21^st March 2003. The Applicant says in his application that he was notified of the decision on 28^th March 2003. He applies for an order that the time for making the application be extended under s.477 of the Migration Act.
It can clearly be seen that the application is out of time in that it was not filed within 28 days of actual notification of the Tribunal decision. Sub-s.477(1) of the Migration Act requires that an application for review be filed within 28 days of the actual notification. Transitional provisions in fact deem matters prior to 1^st December 2005 to have been notified on 1^st December 2005. Even so, the application is out of time. Item 42 of the Migration Litigation Reform Act makes that very clear. Thus, the Court's power to extend the time for filing by 56 days under the provisions of sub-s.477(2)(a) of the Migration Act does not apply. The application for an extension of time would need to be made within 84 days of actual notification of the Tribunal decision.
In such a case the last day…

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: [2007] FMCA 1383
Decision Date: 9 July 2007

CaseChat Overview and Summary

SZAJB, the applicant, sought judicial review of a decision made by the Refugee Review Tribunal, which in turn had assessed the merits of the applicant's claim for refugee status. The Minister for Immigration, the respondent, defended the tribunal's decision. The Federal Court was called upon to determine the validity of the application for judicial review.

The court was tasked with deciding whether the application was competent and whether it represented an abuse of process. Competency referred to the procedural requirements that must be met for an application to be valid, while abuse of process pertained to whether the application was being used for an improper purpose or was otherwise vexatious. The court also had to consider whether to grant leave for further review of the tribunal's decision.

In dismissing the application, the court found it to be incompetent as it did not meet the procedural requirements for a valid application for judicial review. The court also determined that the application was an abuse of process because it was being used to re-litigate issues that had already been decided by the tribunal. The court was of the view that the application was being used for an improper purpose and was vexatious. Consequently, the court awarded costs against the applicant on an indemnity basis and prohibited any further application for review of the tribunal's decision without leave of the court.

Orders

Orders of the court

The Application is dismissed as incompetent.

The Application is dismissed as an abuse of process.

The Applicant is to pay the First Respondent’s costs on an indemnity basis fixed in the sum of $1,300.00.

No further application for review of the decision of the Refugee Review Tribunal made on 28 February 2003 and handed down on

21 March 2003 is to be accepted for filing without leave of the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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