SZCOT v Minister for Immigration - [2006] FMCA 1082

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCOT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1082

MIGRATION – Refugee – Tribunal found it had no jurisdiction to review the delegate’s decision – extensive litigation history – no reviewable error – abuse of the process of the Court – application dismissed.

Migration Act 1958

Federal Magistrate Court Rules 2001, rr.13.10(a) 13.10(c)

NALB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 614
Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906
SZGMZ vMinister for Immigration [2005] FMCA 1549
SZESD v Minister for Immigration & Anor [2006] FMCA 459
SZHWA & Ors v Minister for Immigration & Anor [2006] FMCA 451

Applicant:

SZCOT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 679 of 2006

Judgment of:

Nicholls FM

Hearing date:

11 July 2006

Date of Last Submission:

27 June 2006

Delivered at:

Sydney

Delivered on:

11 July 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms. Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant not file, without leave of the Court, any further application in relation to the Refugee Review Tribunal decision of

15 February 2006, the Refugee Review Tribunal decision of 20 January 2003 and the earlier decision of a delegate of the first respondent made on 15 May 2001 to which the subsequent Tribunal decisions relate.
The applicant pay the first respondent’s costs on an indemnity basis set in the amount of $2800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 679 of 2006

SZCOT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore: Revised)

I have before me an application filed in this Court on 6 March 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 February 2006. The Tribunal found it did not have jurisdiction to review the decision of a delegate of the respondent Minister made on 15 May 2001 to refuse a protection visa to the applicant.
I also have before me for the respondent a response, filed on 29 March 2006, seeking summary dismissal of the application pursuant to rule 13.10(a) of the Federal Magistrate Court Rules 2001 (“the Rules”) on the basis that there is no reasonable prospect of success in prosecuting the proceedings, or pursuant to rule 13.10(c) of the Rules, on the basis that the proceedings are an abuse of the Court’s process.
I also have before me, in support of the respondent’s Notice of Motion, the affidavit of Nicola Johnson, a solicitor in the employ of the respondent’s solicitors, sworn 29 March 2006, which was admitted into evidence before me today. Annexure “A” to the affidavit of Nicola Johnson reveals the following relevant history in this matter:
“BACKGROUND
19 April 1980 Applicant born in Burma [Note: the applicant was born in Burma, but taken…

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 1082
Decision Date: 11 July 2006

CaseChat Overview and Summary

In the case of SZCOT v Minister for Immigration, the applicant, born in Burma and later taken to Bangladesh, sought judicial review of a decision by the Refugee Review Tribunal (RRT) which found it had no jurisdiction to review a decision made by a delegate of the Minister for Immigration in 2001. This was the second application for review of the 2001 decision, the first having been dismissed in 2003. The matter had previously been the subject of litigation in the Federal Magistrates Court and Federal Court, and an application for special leave to appeal to the High Court was dismissed in 2005. The applicant's latest application for judicial review was filed in the Federal Magistrates Court in 2006.

The primary legal issue before the court was whether the RRT had jurisdiction to review the 2001 decision, given that the 2001 decision had already been reviewed in 2003, and the current application for review was lodged outside the prescribed time limit. The court had to consider whether the RRT’s finding that it lacked jurisdiction was correct, and if so, whether the applicant’s application should be dismissed. Additionally, the court had to determine whether the applicant should be prohibited from filing further applications regarding the same decisions and whether costs should be awarded to the respondent.

The court found that the RRT correctly determined it lacked jurisdiction to review the 2001 decision. The court emphasised that the 2001 decision had already been reviewed in 2003, and the current application was lodged outside the prescribed time limit. The court held that the RRT’s decision was consistent with the applicable legislation, which restricts the circumstances under which a decision can be reviewed. The court also noted that the applicant had previously had multiple opportunities to challenge the 2001 decision through various legal avenues, all of which had been unsuccessful. As a result, the application for judicial review was dismissed. The court further ordered that the applicant not file any further applications regarding the same decisions without leave of the court and directed the applicant to pay the respondent’s costs.

Orders

Orders of the court

The application is dismissed.

The applicant not file, without leave of the Court, any further application in relation to the Refugee Review Tribunal decision of

15 February 2006, the Refugee Review Tribunal decision of 20 January 2003 and the earlier decision of a delegate of the first respondent made on 15 May 2001 to which the subsequent Tribunal decisions relate.

The applicant pay the first respondent’s costs on an indemnity basis set in the amount of $2800.00.

Background

Background to the litigation

I also have before me, in support of the respondent’s Notice of Motion, the affidavit of Nicola Johnson, a solicitor in the employ of the respondent’s solicitors, sworn 29 March 2006, which was admitted into evidence before me today. Annexure “A” to the affidavit of Nicola Johnson reveals the following relevant history in this matter:“BACKGROUND19 April 1980 Applicant born in Burma [Note: the applicant was born in Burma, but taken to Bangladesh at an early age. The refugee claims were made against Burma. See the Judgment of Wilcox J. in NALB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 614 – N286 of 2003 at annexure “B” to the affidavit of Nicola Johnson at [2], [3], [6] and [7].]3 February 2001 Applicant arrived in AustraliaDIMA16 March 2001 Applicant lodged an application for a protection visa15 May 2001 Delegate of respondent refused application for a protection visaRRT13 June 2001 Applicant applied to RRT for review of the delegate’s decision20 January 2003 Delegate’s decision affirmed by RRT12 February 2003 RRT decision handed downFCN286 of 200311 March 2003 Application for judicial review lodged in the Federal Court16 June 2003 Orders and judgment of Wilcox J dismissing application with costs [see annexure “B” of the affidavit of Nicola Johnson].FMCSZ214 of 200428 January 2004 Application for judicial review filed19 May 2004 Notice of Objection to competency filed and served28 May 2004 Notice of Motion for summary dismissal filed and served13 September 2004 Orders and judgment of Driver FM upholding respondent’s objection to competency and dismissing application as incompetent with costs fixed in the sum of $2,500.00FFCN1357 of 200417 September 2004 Application for leave to appeal lodged in the Federal Court11 November 2004 Orders and judgment of Emmett J dismissing the application with costs fixed in the sum of $600.00HCS465 of 200430 November 2004 Application for special leave to appeal lodged in the High Court29 August 2005 Orders of McHugh and Heydon JJ dismissing application [see annexure “C” of the affidavit of Nicola Johnson]RRT1 November 2005 Applicant applied to RRT for review of Delegate’s decision dated 15 May 2001 [see annexure “D” of the affidavit of Nicola Johnson]15 February 2006 RRT found it had no jurisdiction to review the Delegate’s decision [see annexure “E” of the affidavit of Nicola Johnson]FMCSYG 679 of 20066 March 2006 Application for judicial review lodged in the Federal Magistrates Court to review decision of RRT dated 15 February 2006” The Tribunal's decision record (in relation to the decision which is the subject of review before me now) is reproduced at annexure “E” to the affidavit of Nicola Johnson. The Tribunal identified the critical question as being whether it had jurisdiction to review the decision of the delegate of the respondent Minister made on 15 May 2001, on the basis of the application for review which was lodged on 1 November 2005. It noted that it had formed a preliminary view that it did not have jurisdiction on the basis that the decision in question had already been reviewed, and because the second application for review was received outside the prescribed time limit. The Tribunal noted that it had written to the applicant on 20 December 2005 inviting submissions on these issues, and that the applicant responded by letter dated 3 January 2006.

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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