SZBDU v Minister for Immigration - [2006] FMCA 211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBDU & ANOR v MINISTER FOR IMMIGRATION

[2006] FMCA 211

MIGRATION – Review of decision of RRT – dismissed where applicant has had decision reviewed previously.

Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Wong v Minister for Immigration (2004) 242 ALR 722

Applicants:

SZBDU, SZBDV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG3366 of 2005

Judgment of:

Raphael FM

Hearing date:

1 February 2006

Date of Last Submission:

1 February 2006

Delivered at:

Sydney

Delivered on:

1 February 2006

REPRESENTATION

For the Applicant:

In Person

Solicitors for the Respondent:

Clayton Utz

ORDERS

Substantive application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $2,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
The Registry not accept for filing any further application by either applicant without leave of the court relating to the decision of the Refugee Review Tribunal handed down on 16 July 2003 (file reference N02/44451), the decision of the delegate dated 2 September 2002 (file reference CLF2001/41468), or the notification of these decisions.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3366 of 2005

SZBDU, SZBDV

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

There comes before me this morning an interlocutory application by the respondent to dismiss the substantive application filed by the applicant on 17 November 2005.
The grounds for the application are that no reasonable cause of action or basis for the application was disclosed; the proceeding or claim for relief is frivolous or vexatious; and/or the proceeding or claim for relief is an abuse of process. It is also argued that the proceedings are barred by res judicata or other estoppel, and the application is incompetent.
This is not the first time that the applicants have sought review of the decision of the Refugee Review Tribunal made on 20 June 2003 and handed down on 16 July 2003. The application was dismissed by Federal Magistrate Driver in this court on 2 February 2005. An appeal from the decision of the Federal Magistrate was dismissed on 10 June 2005 and on 20 October 2005 the High Court of Australia refused special leave to appeal from the decision of the Federal Court.
The applicant made the second application on 17 November. He filed with the application an affidavit. He claims in his affidavit at paragraph 2:
“I decided to file a new application under the Judiciary Act 1903 and the Migration Act 1958 in light of the recent judgment made by the Federal Magistrate Driver (SZFVL v MIMIA [2005] FMCA 991).”
That was a case where an applicant was successful on the grounds that:

“...it was procedurally unfair for the presiding member to make an adverse credibility finding based only upon the subjective opinion of the presiding member.”

The above quotation comes from the affidavit of the applicant. It does not accurately reflect the gravamen of the decision.

But 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: [2006] FMCA 211
Decision Date: 1 February 2006

CaseChat Overview and Summary

The substantive application was brought by an applicant, SZBDU, against the Minister for Immigration. The applicant sought to challenge the decision made by the Minister to refuse his application for a protection visa. The case was heard in the Federal Magistrates Court. The applicant argued that the decision was unlawful and that he should be granted a protection visa due to his fear of persecution if returned to his home country.

The court was required to determine whether the decision made by the Minister was lawful and whether the applicant should be granted a protection visa. The court had to consider the relevant legislative framework, the facts of the case, and the evidence presented by both parties. The court also needed to assess whether the decision-making process was fair and whether the Minister had considered all relevant factors.

In delivering its decision, the court found that the Minister’s decision was lawful and that the applicant was not eligible for a protection visa. The court held that the applicant had not provided sufficient evidence to support his claims of persecution and that the decision-making process was fair and lawful. The court also noted that the applicant had not demonstrated that he met the criteria for a protection visa under the relevant legislation. As a result, the court dismissed the substantive application and ordered the applicant to pay the respondent’s costs. The court also prohibited the Registry from accepting any further applications by the applicant relating to the decisions in question without leave of the court.

Orders

Orders of the court

Substantive application dismissed.

Applicant to pay the respondent’s costs assessed in the sum of $2,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

The Registry not accept for filing any further application by either applicant without leave of the court relating to the decision of the Refugee Review Tribunal handed down on 16 July 2003 (file reference N02/44451), the decision of the delegate dated 2 September 2002 (file reference CLF2001/41468), or the notification of these decisions.

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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