MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicants are citizens of Bangladesh – applicants are a husband, wife and child – claim that circumstances in Bangladesh have changed – second application to Tribunal – RRT-reviewable decision – requirements for a valid application – functus officio – judicial comity – where the decision of a delegate of the Minister has already been the subject of a valid review by the tribunal it is no longer an RRT reviewable decision.
PRACTICE & PROCEDURE – Whether second application to Tribunal permissible – abuse of process – costs – where third applicant is a child – no order for costs against a child.
In the alternative, the Application is dismissed as an abuse of process.
The Applicants are restrained from filing any further application for review of the decision of the delegate dated 1 December 1999 or the decisions of the Refugee Review Tribunal dated 27 March 2002 and 18 May 2007 or either of them without prior leave of the Court.
The First and Second Applicants are to pay the First Respondent’s costs.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SYG 1830 of 2007
SZBWJ
First Applicant
SZBWK
Second Applicant
SZBWL
Third Applicant
And
MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent
REFUGEE REVIEW…
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 SZBWJ v MIAC
Sign in free to access the full text
Details
AGLC
SZBWJ v MIAC [2008] FMCA 164
Case
[2008] FMCA 164
Decision Date
CaseChat Overview and Summary
The case of SZBWJ v MIAC involved applicants who were citizens of Bangladesh, comprising a husband, wife, and their child, seeking a review of decisions made by the Refugee Review Tribunal (RRT) and a delegate of the Minister for Immigration and Citizenship (MIAC) regarding their application for a protection visa. The applicants argued that circumstances in Bangladesh had changed, warranting reconsideration of their application. This was their second application to the Tribunal following an earlier unsuccessful review. The applicants sought to challenge the refusal of their protection visa application, which had been upheld by both the delegate and the Tribunal.
The primary legal issues the court had to address were whether a second application to the Tribunal was permissible and whether the Tribunal had the jurisdiction to review the decision after it had already been the subject of a valid review. The court also considered whether the application constituted an abuse of process and the appropriate costs order, particularly in relation to the child applicant. The court examined the principles of judicial comity and functus officio, which suggest that once a decision is reviewed by the Tribunal, it becomes final and the Tribunal no longer has jurisdiction over it.
The court found that a second application to the Tribunal was not permissible as the decision of the delegate had already been subject to a valid review by the Tribunal. The court held that this constituted an abuse of process and dismissed the application on that basis. Additionally, the court considered the principles of judicial comity and the concept of functus officio, determining that the Tribunal's previous decision was final and could not be revisited. The court also noted that no order for costs would be made against the child applicant.
The final orders of the court were to dismiss the application, alternatively on the grounds of abuse of process, and to restrain the applicants from filing any further applications for review without the court’s prior leave. Furthermore, the court ordered the first and second applicants to pay the costs of the first respondent. The child applicant was exempt from any costs order.
Orders
Orders of the court
1.
The Application is dismissed.
2.
In the alternative, the Application is dismissed as an abuse of process.
3.
The Applicants are restrained from filing any further application for review of the decision of the delegate dated 1 December 1999 or the decisions of the Refugee Review Tribunal dated 27 March 2002 and 18 May 2007 or either of them without prior leave of the Court.
4.
The First and Second Applicants are to pay the First Respondent’s costs.