SZBUF v Minister for Immigration - [2005] FMCA 179

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBUF v MINISTER FOR IMMIGRATION

[2005] FMCA 179

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application summarily dismissed as disclosing no reasonable basis for the relief sought.

Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.422B, 424A, 426A

Applicant A135/2002 v Minister for Immigration [2003] FCA 708

Applicant A163/2002 v Minister for Immigration [2003] FCA 677
Chung v University of Sydney [2001] FMCA 94
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236
Kosi v Minister for Immigration [2003] FMCA 340
Miller v Wertheim and Anor [2001] FMCA 103
S58/2003 v Minister for Immigration [2004] FCAFC 283
SDAE v Minister for Immigration [2003] FCA 959
VSAF v Minister for Immigration [2004] FCA 1270
Webster v Lampard (1993) 177 CLR 598
Xie v Immigration Department[1999] FCA 365
Yo Han Chung v University of Sydney [2002] FCA 186

Applicant:

SZBUF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2318 of 2003

Judgment of:

Driver FM

Hearing date:

28 February 2005

Delivered at:

Sydney

Delivered on:

28 February 2005

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Mr P Reynolds
Clayton Utz

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2318 of 2003

SZBUF

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application by the respondent Minister filed on 3 February 2005. The Minister seeks the summary dismissal of an application for judicial review filed on 31 October 2003. The Minister seeks the summary dismissal of that application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on the basis that the judicial review application discloses no reasonable basis for the relief sought. The Minister also seeks costs.
The Minister's application is supported by the affidavit of Patrick David Reynolds made on 1 February 2005 and filed on 3 February 2005. The Minister also relies on written submissions filed on 3 February 2005 that were augmented orally by Mr Reynolds today. The submissions and Mr Reynolds' affidavit were prepared on the basis of the original application for judicial review filed on 31 October 2003. An amended application was, however, filed on 19 May 2004. I treat that as the judicial review application before the Court. It was apparently not served on the Minister.
The background to these proceedings is set out in paragraphs 1 to 3.2 of the Minister's written submissions. I incorporate those paragraphs for the purposes of this judgment:
Chronology

DATE

EVENT

12 November 2002

Application for protection visa…

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 179
Decision Date: 28 February 2005

CaseChat Overview and Summary

SZBUF has applied for judicial review of a decision of the Refugee Review Tribunal (RRT) affirming a delegate's decision to refuse his application for a protection visa. The Minister for Immigration & Multicultural & Indigenous Affairs has applied for summary dismissal of the judicial review application on the basis that it discloses no reasonable basis for the relief sought. The Federal Magistrates Court was required to determine whether the judicial review application disclosed a reasonable basis for the relief sought. The Court was required to consider the general principles governing the exercise of the Court's discretion to summarily dismiss an application for judicial review. The Court found that the judicial review application disclosed no reasonable basis for the relief sought. The Court found that the grounds of judicial review were unparticularised and lacked evidence. The Court found that the RRT did not breach any legal requirements in reaching its decision and that there was no substantive breach of the rules of natural justice. The Court dismissed the judicial review application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules. The Court ordered that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

Orders