SZBCE v MIMA - [2006] FMCA 1897

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCE v MINISTER FOR IMMIGRATION

[2006] FMCA 1897

MIGRATION – Summary dismissal of application.

PRACTICE & PROCEDURE – Grant of permanent injunction to restrain applicant from seeking further review from RRT.

Applicant:

SZBCE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number:

SYG2828 of 2006

Judgment of:

Raphael FM

Hearing date:

13 December 2006

Date of Last Submission:

13 December 2006

Delivered at:

Sydney

Delivered on:

13 December 2006

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Substantive application dismissed.
The applicant be permanently restrained from making an application to the Refugee Review Tribunal in respect of a decision of the delegate of the first respondent refusing to grant him a protection visa made on 12 April 2002.
No further application by the applicant to review the decision of a delegate of the Minister made on 12 April 2002 or the decision of the Refugee Review Tribunal handed down on 8 July 2003 be accepted for filing without leave of the court.
Applicant pay the respondent’s costs assessed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2828 of 2006

SZBCE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in the substantive proceedings made an application for a protection visa on 13 December 2001 which was refused by a delegate of the Minister on 12 April 2002. He lodged an application for review of that decision with the Refugee Review Tribunal on 30 April 2002. The RRT determined to affirm the decision of the delegate on 8 July 2003.
On 4 August 2003 the applicant sought judicial review in this court. The application for judicial review was heard and determined by Federal Magistrate Driver on 10 December 2004. No jurisdictional error was found. On 23 December 2004 the applicant filed a notice of appeal which was dismissed by her Honour Bennet J on 2 June 2005. On 24 June 2005 the applicant applied for special leave to appeal to the High Court which was dismissed on 6 October 2005 by Hayne and Callinan JJ.
On 26 October 2005 the applicant filed another application for judicial review, this time of the decision of the delegate. That application was summarily dismissed by Scarlett FM on 12 December 2005. On 3 January 2006 the applicant filed an application for leave to appeal which was dismissed by Edmonds J on 1 May 2006. On 31 May 2006 the applicant lodged a second RRT application for review of the delegate’s decision. On 13 December 2006 the RRT found it had no jurisdiction to review the decision of the delegate again and on 3 October 2006 the applicant filed an application for judicial review in this court. Not surprisingly, the Minister has asked for summary dismissal of that application.
The history which I have rehearsed has only to be considered for a court to feel that its processes are being abused when the same decision…

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.

Continue reading SZBCE v MIMA

Details

AGLC: SZBCE v MIMA [2006] FMCA 1897
Case: [2006] FMCA 1897
Decision Date: 13 December 2006

CaseChat Overview and Summary

SZBCE, the applicant, filed an application against the Minister for Immigration and Multicultural Affairs, the respondent, seeking judicial review of a decision to refuse a protection visa. The Federal Court heard the case, where the applicant argued against the substantive dismissal of his application and the injunctive relief sought by the respondent. The legal issues before the court were whether the applicant's application should be summarily dismissed and whether an injunction should be granted to prevent the applicant from further seeking review of the decision from the Refugee Review Tribunal. The court examined the applicant's history of making repetitive and frivolous applications, the substantive merits of the application, and the necessity of preventing further review to conserve judicial resources. The court found that the applicant's history of vexatious litigation warranted the imposition of the injunction and the dismissal of the substantive application. It held that the applicant's continued pursuit of review was an abuse of process and that an injunction was necessary to prevent further wastage of judicial resources. The court granted the respondent's application for an injunction and dismissed the substantive application, ordering that the applicant be permanently restrained from making any further application to the Refugee Review Tribunal in relation to the specified decision. Additionally, the court ruled that any further application by the applicant to review the decision of the delegate or the decision of the Refugee Review Tribunal would require leave of the court. The applicant was also ordered to pay the respondent's costs in the sum of $1,500.

Orders

Orders of the court

Substantive application dismissed.

The applicant be permanently restrained from making an application to the Refugee Review Tribunal in respect of a decision of the delegate of the first respondent refusing to grant him a protection visa made on 12 April 2002.

No further application by the applicant to review the decision of a delegate of the Minister made on 12 April 2002 or the decision of the Refugee Review Tribunal handed down on 8 July 2003 be accepted for filing without leave of the court.

Applicant pay the respondent’s costs assessed in the sum of $1,500.

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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