SZBRB v Refugee Review Tribunal - [2005] FMCA 1955

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBRB v REFUGEE REVIEW TRIBUNAL & ANOR

[2005] FMCA 1955

MIGRATION – RRT decision – Indian woman fearing family humiliation – previous judicial review proceedings failed at interlocutory stage – hopeless prospects – application dismissed as abuse of process.

Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court Rules, 13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA FC 119
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZBRB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 285

Applicant:

SZBRB

First Respondent:

REFUGEE REVIEW TRIBUNAL

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2304 of 2005

Judgment of:

Smith FM

Hearing date:

12 December 2005

Delivered at:

Sydney

Delivered on:

12 December 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Second Respondent:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the second respondent’s costs in the sum of $2,500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 18 September 2003 reference N02/45117 or for review of the decision of the delegate of the second respondent dated 30 October 2002 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2304 of 2005

SZBRB

Applicant

And

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this matter was filed on 22 August 2005 and invokes the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) by seeking orders by way of judicial review of the decision of the Refugee Review Tribunal made on 25 August 2003. The Tribunal affirmed a decision of a delegate made on 11 October 2002 refusing to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act (Cth) s.8).
The application was given a first court date before me on 27 September 2005. On that occasion the applicant appeared, and the Minister’s solicitors foreshadowed an interlocutory application for the summary dismissal of the application. I gave directions for the listing of that motion today. The applicant has appeared and has argued against that order.
In my opinion this is an appropriate case for the Court to exercise its power of summary dismissal under r.13.10(c), on the ground that the proceeding is an abuse of process of the Court. Other paragraphs of…

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 1955
Decision Date: 12 December 2005

CaseChat Overview and Summary

The case of SZBRB v Refugee Review Tribunal involved the applicant, SZBRB, contesting a decision of the Refugee Review Tribunal. The dispute centred around the tribunal's refusal to review a decision by the delegate of the second respondent, which had denied SZBRB's application for a protection visa. The matter was heard in the Federal Court of Australia. The central legal issues revolved around whether the court should permit the applicant to pursue a substantive review of the tribunal's decision, and if not, whether costs should be awarded against the applicant for an abuse of process.

The court considered whether the application constituted an abuse of the court's process, given that the applicant had already had multiple opportunities to challenge the decisions in question. It was noted that the applicant had not only failed to identify any new evidence or arguments that warranted a substantive review, but had also made numerous unsuccessful attempts to challenge the same decisions in various forums. The court found that the application was frivolous and vexatious, amounting to an abuse of the court's process. As such, the substantive application was dismissed under Rule 13.10(c) of the Federal Court Rules. Additionally, the court ordered the applicant to pay the costs of the second respondent in the sum of $2,500. The court also imposed a restriction on the applicant's ability to make further applications for review of the tribunal's decision, the delegate's decision, or any notifications related to those decisions without first obtaining leave from the court.

In summary, the Federal Court dismissed the applicant's substantive application as an abuse of process and ordered the applicant to pay costs. The court also restricted the applicant from making further applications for review without prior leave.

Orders

Orders of the court

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.

The applicant must pay the second respondent’s costs in the sum of $2,500.

Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 18 September 2003 reference N02/45117 or for review of the decision of the delegate of the second respondent dated 30 October 2002 or for review of any notification of those decisions shall be accepted for filing without prior 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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