SZBZF v Minister for Immigration - [2006] FMCA 145

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBZF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 145

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of judicial review application in the light of earlier judicial determination that the RRT decision is a privative clause decision.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.477(1A)

SZBML v Minister for Immigration [2004] FMCA 431
SZCTT v Minister for Immigration [2004] FMCA 498
SZDCN v Minister for Immigration [2004] FMCA 103

Applicant:

SZBZF

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2914 of 2005

Judgment of:

Driver FM

Hearing date:

6 February 2006

Delivered at:

Sydney

Delivered on:

6 February 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Mansour
Clayton Utz

INTERLOCUTORY ORDERS

The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
No further application for review by this applicant of the decision of the Refugee Review Tribunal handed down on 28 October 2003 shall be accepted for filing except by leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2914 of 2005

SZBZF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application filed on 20 January 2006 by the respondent Minister. The Minister seeks the summary dismissal of a judicial review application filed on 11 October 2005. The judicial review application seeks review of a decision of the Refugee Review Tribunal (“the RRT”) that was handed down on 28 October 2003. The Minister asserts that the judicial review application is incompetent and, in addition or in the alternative, that the application should be dismissed as disclosing no reasonable cause of action, or because it is vexatious or an abuse of process, or because the application is barred by res judicata and estoppel.
The Minister's application is supported by the affidavit of Andrea Maree Mansour made on 16 January 2006. I received that affidavit as evidence and I accept the accuracy of the facts deposed to. The relevant background is set out in paras.2 and 3 of the Minister's written submissions which I adopt for the purposes of this judgment:
Chronology

DATE EVENT

23 January 2003 Application for Protection Visa lodged.

28 February 2003 A delegate of the Minister (the "Delegate") refused to grant the Protection Visa.

20 March 2003 The Applicant applied to the Refugee Review Tribunal ("RRT") for review of the Delegate's decision.

28 October 2003 The RRT handed down its decision affirming the Delegate’s decision (the "RRT Decision").[1]

24 November 2003 The Applicant applied to the Federal Magistrates Court of Australia for review of the RRT Decision commencing proceedings SZ2543 of 2003.[2] ("Proceedings SZ2543 of 2003")

DATE	EVENT
23 January 2003	Application for Protection Visa lodged.
28 February 2003	A delegate of the Minister (the "Delegate") refused to grant the Protection Visa.
20 March 2003	The Applicant applied to the Refugee Review Tribunal ("RRT") for review of the Delegate's decision.
28 October 2003	The RRT handed down its decision affirming the Delegate’s decision (the "RRT Decision").[1]
24 November 2003	The Applicant applied to the Federal Magistrates Court of Australia for review of the RRT Decision commencing proceedings SZ2543 of 2003.[2] ("Proceedings SZ2543 of 2003")

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: [2006] FMCA 145
Decision Date: 6 February 2006

CaseChat Overview and Summary

In the matter of SZBZF v Minister for Immigration & Anor, the Federal Magistrates Court of Australia was tasked with reviewing an interlocutory application brought forth by the Minister for Immigration. The applicant, SZBZF, sought to challenge the decision of the Refugee Review Tribunal (RRT) that had refused to grant a protection visa. The Minister, on the other hand, argued that the application was incompetent and should be dismissed on various grounds, including that it disclosed no reasonable cause of action or was vexatious. The RRT decision had previously been reviewed and dismissed by the Federal Magistrates Court, the Federal Court, and the High Court, which had found it to be a privative clause decision.

The legal issues before the court involved the competence of the application and the jurisdiction of the court to entertain the matter. The court had to determine whether the previous decisions of higher courts precluded any further review and whether the application was vexatious or an abuse of process. Additionally, the court considered whether the application was barred by res judicata or estoppel due to the earlier judicial determination that the RRT decision was a privative clause decision.

The court, Driver FM, held that the RRT decision had already been determined to be a privative clause decision by previous judicial determinations, thus barring any further review by the Federal Magistrates Court. The court concluded that the Federal Magistrates Court lacked jurisdiction to review the RRT decision, making the application incompetent. Furthermore, the court found that the application was vexatious due to the repeated nature of similar applications and the lack of new grounds for review. The court ordered that the applicant pay the Minister's costs and disbursements and prohibited further applications regarding the RRT decision unless leave of the court was obtained.

The final orders of the court included the dismissal of the judicial review application as incompetent, the payment of costs by the applicant to the Minister, and the prohibition of further applications regarding the RRT decision except with leave of the court. The court also directed that the Refugee Review Tribunal be joined as the second respondent to the proceedings.

Orders