SZAPF v Minister for Immigration - [2005] FMCA 1967

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPF v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1967

MIGRATION – Visa – protection visa – application for review of a decision of the Minister’s delegate – primary decision.

PRACTICE & PROCEDURE – Where application for review of RRT decision previously heard by Federal Magistrates Court – where appeal dismissed by Federal Court for non-appearance by the appellant – where applicant applied for special leave to appeal to the High Court of Australia – application for special leave dismissed by High Court – abuse of process – res judicata.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.476

Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 referred to
Rogers v R (1994) 181 CLR 251 referred to
S1689/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1625 followed
SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 684 referred to
SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 802 referred to
SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316 referred to
Walton v Gardiner (1993) 177 CLR 379 referred to

Applicant:

SZAPF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3199 of 2005

Judgment of:

Scarlett FM

Hearing date:

14 December 2005

Date of Last Submission:

14 December 2005

Delivered at:

Sydney

Delivered on:

14 December 2005

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Ms Mak
Clayton Utz

ORDERS

That the Interlocutory application filed by the Respondent on

5 December 2005 is granted.
The application for judicial review of the notification of the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs made on 29 May 2000 (“the delegate’s decision”) and of the delegate’s decision is summarily dismissed as an abuse of process.
The Applicant is restrained from filing any further application for judicial review of the delegate’s decision or the decision of the Refugee Review Tribunal made on 28 March 2003 (“the Refugee Review Tribunal decision”) without leave of the Court.
No application for judicial review of the delegate’s decision or the Refugee Review Tribunal decision is to be accepted for filing at any Registry of the Court without leave of the Court.
The decision of the Registry to waive the filing fee for the application for judicial review is revoked.
The Applicant is to pay the Respondent’s costs in the sum of $1,000.00 together with Court costs of $288.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3199 of 2005

SZAPF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application filed by the applicant for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs. The delegate's decision was made on

29 May 2000 and was notified to the…

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: [2005] FMCA 1967
Decision Date: 14 December 2005

CaseChat Overview and Summary

The case involved an applicant, SZAPF, and the Minister for Immigration, concerning a dispute over the denial of a protection visa. The Federal Magistrates Court heard an application for review of the Minister's delegate's decision, which was dismissed for the applicant's non-appearance. The Federal Court later dismissed an appeal for the same reason, and the High Court dismissed an application for special leave to appeal. The applicant then sought judicial review of the decision, which was opposed by the Minister.

The court had to determine whether the applicant's application for judicial review was an abuse of process and whether the principle of res judicata applied. The court also had to consider whether the Registry's decision to waive the filing fee for the review application was appropriate.

The court found that the application for judicial review was an abuse of process and that the principle of res judicata applied. The court also found that the Registry's decision to waive the filing fee was not appropriate. The court granted the Minister's interlocutory application and dismissed the applicant's application for judicial review. The court also restrained the applicant from filing any further application without leave and ordered that no application for judicial review would be accepted without leave. The court revoked the Registry's decision to waive the filing fee and ordered the applicant to pay the Minister's costs and the Court's costs.

The court ordered that the Minister's interlocutory application be granted, the applicant's application for judicial review be dismissed, and the applicant be restrained from filing any further application without leave. The court also ordered that no application for judicial review would be accepted without leave, the Registry's decision to waive the filing fee be revoked, and the applicant pay the Minister's costs and the Court's costs.

Orders

Orders of the court

That the Interlocutory application filed by the Respondent on

5 December 2005 is granted.

The application for judicial review of the notification of the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs made on 29 May 2000 (“the delegate’s decision”) and of the delegate’s decision is summarily dismissed as an abuse of process.

The Applicant is restrained from filing any further application for judicial review of the delegate’s decision or the decision of the Refugee Review Tribunal made on 28 March 2003 (“the Refugee Review Tribunal decision”) without leave of the Court.

No application for judicial review of the delegate’s decision or the Refugee Review Tribunal decision is to be accepted for filing at any Registry of the Court without leave of the Court.

The decision of the Registry to waive the filing fee for the application for judicial review is revoked.

The Applicant is to pay the Respondent’s costs in the sum of $1,000.00 together with Court costs of $288.00.

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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