SZCKB v MIMA - [2006] FMCA 804

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCKB v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 804

MIGRATION – Visa – protection visa – Refugee Review Tribunal -application for review of Refugee Review Tribunal decision affirming delegate's decision not to grant a protection visa – jurisdiction – where Tribunal found it did not have the jurisdiction to entertain the application for review – application out of time.

PRACTICE & PROCEDURE – Abuse of process – where applicant seeks a second review of a decision that has already been reviewed.

Migration Act 1958 (Cth), ss.412, 476

NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1246 referred to
Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102
SZCKB v Minister for Immigration [2005] FMCA 1905

Applicant:

SZCKB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1059 of 2006

Judgment of:

Scarlett FM

Hearing date:

29 May 2006

Date of Last Submission:

29 May 2006

Delivered at:

Sydney

Delivered on:

29 May 2006

REPRESENTATION

The Applicant:

No appearance

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed as an abuse of process.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,500.00.
No further applications for review of the decisions of the refugee Review Tribunal made on 20 March 2006 (N05/52936) and 27 March 2006 (N052936) or for review of the decision of the delegate of the Respondent dated 7 July 2000 shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1059 of 2006

SZCKB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal made on 22^nd March 2006. The Tribunal decided that it does not have jurisdiction to deal with the applicant’s application for review.

Background

The applicant applied for a protection visa on 14^th June 2000.

A delegate of the Minister refused the application on 7^th July 2000.

The applicant then applied to the Refugee Review Tribunal for a review of that decision on 2^nd August 2000.
On 20^th March 2002 the Refugee Review Tribunal affirmed the delegate’s decision. As well as seeking judicial review of that decision, the applicant sought the intervention of the Minister under s. 417 of the Migration Act. This was unsuccessful.
The applicant then lodged a second application for review of the delegate’s decision on 21^st December 2005. It is this application that led to the decision of the Tribunal that it had no jurisdiction.
The Tribunal formed the preliminary view that it did not have jurisdiction because the review application was received outside the time prescribed by s. 412 of the Migration Act and because the Tribunal had already reviewed the delegate’s decision. As a result, the Tribunal…

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 SZCKB v MIMA

Details

AGLC: SZCKB v MIMA [2006] FMCA 804
Case: [2006] FMCA 804
Decision Date: 29 May 2006

CaseChat Overview and Summary

In the Federal Court of Australia, the case of SZCKB v MIMA involved an application for review of a decision by the Refugee Review Tribunal which had affirmed a delegate’s decision not to grant a protection visa to the applicant. The matter was brought before the Court to challenge the Tribunal's determination that it lacked jurisdiction to entertain the application for review on the basis that it was out of time. The applicant, SZCKB, contended that the Tribunal’s jurisdictional finding was incorrect and sought to have the decision reviewed.

The central legal issues before the Court were whether the Tribunal correctly determined that it lacked jurisdiction to entertain the application for review, and whether the applicant’s pursuit of a second review of the same decision constituted an abuse of process. The Court needed to determine if the Tribunal’s jurisdictional finding was correct and whether the application for review was indeed out of time, and if so, whether allowing the application would amount to an abuse of the Court’s process.

The Court found that the Tribunal was correct in its jurisdictional finding that the application for review was out of time. It held that the applicant had not demonstrated any jurisdictional error by the Tribunal in making this determination. Additionally, the Court determined that the applicant's attempt to seek a second review of a decision that had already been reviewed by the Tribunal constituted an abuse of process. Consequently, the application was dismissed, and the applicant was ordered to pay costs. The Court also issued an order barring any further applications for review of the decisions in question without prior leave of the Court.

The final orders of the Court were that the application for review be dismissed as an abuse of process, that the applicant pay the costs of the First Respondent fixed in the sum of $1,500.00, and that no further applications for review of the specified decisions shall be accepted for filing without prior leave of the Court.

Orders

Orders of the court

The application is dismissed as an abuse of process.

The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,500.00.

No further applications for review of the decisions of the refugee Review Tribunal made on 20 March 2006 (N05/52936) and 27 March 2006 (N052936) or for review of the decision of the delegate of the Respondent dated 7 July 2000 shall be accepted for filing without prior leave of the Court.

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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