FEDERAL COURT OF AUSTRALIA
SZBTB v Minister for Immigration and Citizenship [2007] FCA 456
SZBTB, SZBTC AND SZBTD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 195 OF 2007MOORE J
27 MARCH 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 195 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZBTB
First ApplicantSZBTC
Second ApplicantSZBTD
Third ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MOORE J
DATE OF ORDER:
27 MARCH 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave to appeal be refused if leave be necessary.
2.The appeal otherwise be dismissed.
3.The applicant pay the first respondent's costs fixed in the sum of $1000.
4.The name of the first respondent be amended to "Minister for Immigration and Citizenship".
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 195 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZBTB
First ApplicantSZBTC
Second ApplicantSZBTD
Third ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MOORE J
DATE:
27 MARCH 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This purports to be an appeal against a judgment of a Federal Magistrate of 24 January 2007. His Honour dismissed an application filed in that Court on 10 November 2006 as an abuse of process. Those proceedings sought to challenge a decision of the Refugee Review Tribunal of 26 October 2006, determining it had no jurisdiction to entertain an application for review of a decision of the delegate of 28 March 2003. The Tribunal’s reasons for so concluding was that the matter had already been considered by way of review by the Tribunal on an earlier occasion, which affirmed a decision refusing to grant the applicants protection visas (decision handed down on 1 October 2003 and considered in SZBTB v Minister for Immigration [2005] FMCA 1504, SZBTB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1924, and SZBTB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 486).
It is not apparent to me that the Federal Magistrate erred in reaching the conclusion he did. Leave to appeal is probably necessary. I would refuse leave if leave be necessary because the appeal would be futile. I otherwise dismiss the appeal. I order that the applicant pay the Minister’s costs. I order that the name of the first respondent be varied to read, “The Minister for Immigration and Citizenship”. I order that the costs be fixed in the sum of $1000.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate:
Dated: 2 April 2007
The Applicant appeared in person
Solicitor for the Respondent: Sparke Helmore Date of Hearing: 27 March 2007 Date of Judgment: 27 March 2007
- AGLC
- SZBTB v Minister for Immigration and Citizenship [2007] FCA 456
- Case
- [2007] FCA 456
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether the Minister had failed to comply with the requirements of procedural fairness by not providing the applicant with an opportunity to respond to material that was relied upon in the decision to cancel their visa. The court was also required to consider whether the decision itself was unreasonable in light of the material that was properly before the decision-maker. The court considered the relevant legislative provisions and case law to determine the proper scope of procedural fairness and the standards of review applicable to the decision.
The court held that the Minister had not breached the requirements of procedural fairness by not providing the applicant with an opportunity to respond to the material in question. The court found that the material was not of a kind that required the applicant to be given an opportunity to respond, as it was either already before the applicant or did not go to the root of the decision. The court also held that the decision was not unreasonable, as it was open on the material properly before the decision-maker. The court found that the AAT had correctly affirmed the decision of the Minister and that there was no error of law or procedural unfairness.
The court dismissed the appeal and ordered that the applicant pay the costs of the first respondent, the Minister for Immigration and Citizenship. The name of the first respondent was amended to reflect the current title of the Minister. The court held that leave to appeal was not necessary and that the appeal should otherwise be dismissed.
Orders
Orders of the court
1. Leave to appeal be refused if leave be necessary.
2. The appeal otherwise be dismissed.
3. The applicant pay the first respondent's costs fixed in the sum of $1000.
4. The name of the first respondent be amended to "Minister for Immigration and Citizenship".
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
Established by: MOORE J
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