SZBWJ v MIAC

Case [2008] FMCA 164


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBWJ & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 164

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.

Migration Act 1958 (Cth) ss.411, 412, 414, 416, 474
NAGC & Ors v Minister for Immigration [2002] FMCA 171
NAGC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1506
SZBWJ & Ors v Minister for Immigration [2005] FMCA 508
SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13
SZBWJ & Ors v Minister for Immigration & Citizenship & Anor [2007] HCATrans 100
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301
SZIIV v Minister for Immigration [2006] FMCA 322 followed
SZBRB v Minister for Immigration & Anor [2007] FMCA 1093 followed
VQAW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 251
SHWA & Ors v Minister for Immigration & Anor [2006] FMCA 451 followed
SZASP v Minister for Immigration and Citizenship [2007] FCA 771 followed.
First Applicant: SZBWJ
Second Applicant: SZBWK
Third Applicant: SZBWL
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1830 of 2007
Judgment of: Scarlett FM
Hearing date: 18 October 2007
Date of Last Submission: 18 October 2007
Delivered at: Sydney
Delivered on: 21 February 2008

REPRESENTATION

Counsel for the Applicants: Ms McGarrity (appeared pro bono)
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  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.

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…

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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.

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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