SZCBZ v Minister for Immigration - [2005] FMCA 1194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCBZ v MINISTER FOR IMMIGRATION

[2005] FMCA 1194

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 425
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), 16.05
Federal Court Rules, order 35, r.7(2)

Applicant:

SZCBZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2669 of 2003

Delivered on:

9 August 2005

Delivered at:

Sydney

Hearing date:

9 August 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Advocate for the Respondent:

Ms K Crawley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed by the applicant on 15 June 2005 seeking re-instatement of this matter is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2669 of 2003

SZCBZ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

By an application filed on 15 June 2005, the applicant moves the Court for orders that the proceedings be reinstated and that the orders made on 2 November 2004 pursuant to Part 13, Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) dismissing the application on the basis of the non appearance of the applicant be set aside.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 December 2003 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 October 2003 and handed down on 5 November 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 June 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks the Tribunal decision be set aside and…

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 1194
Decision Date: 9 August 2005

CaseChat Overview and Summary

The case of SZCBZ versus the Minister for Immigration involved the applicant, a non-citizen from China, who sought reinstatement of their matter in the Federal Court of Australia. The applicant had previously been involved in a case concerning their visa application, which was eventually dismissed. The legal dispute centred around whether the court should allow the applicant to reinstate their matter, which had been previously dismissed, and if so, under what conditions.

The central legal issues before the court were whether the application for reinstatement was made within a reasonable time and whether there was a sufficient basis for the court to consider the application. The court had to consider the relevant provisions of the Migration Act 1958 and the applicable case law concerning the reinstatement of judicial review applications.

The court held that the application for reinstatement was not made within a reasonable time, and there was no sufficient basis to grant the application. The court found that the applicant had failed to demonstrate any new evidence or changed circumstances that would warrant the court to reconsider the matter. The court further noted that the applicant had been provided with multiple opportunities to present their case and had not done so effectively. Consequently, the court dismissed the application for reinstatement and ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

The application filed by the applicant on 15 June 2005 seeking re-instatement of this matter is dismissed.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.

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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