SZDJD v Minister for Immigration - [2004] FMCA 900

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJD v MINISTER FOR IMMIGRATION

[2004] FMCA 900

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Minister’s objection to competency – RRT decision previously found to be a privative clause decision – objection to competency upheld.

Federal Court Rules 1979 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 477, 483A

NARD v Minister for Immigration [2003] FMCA 60
NARD of 2002v Minister for Immigration [2003] FCA 580

Applicant:

SZDJD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1152 of 2004

Delivered on:

29 November 2004

Delivered at:

Sydney

Hearing date:

29 November 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms J Bautista
Sparke Helmore

INTERLOCUTORY ORDERS

The application for judicial review filed on 19 April 2004 is dismissed as incompetent.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
No further application by this applicant to review the decision of the Refugee Review Tribunal made on 26 June 2002 and handed down on 18 July 2002 is to be accepted for filing, except by leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1152 of 2004

SZDJD

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This matter came before me this afternoon on the Minister's motion of which notice was given on 2 June 2004. The motion seeks the summary dismissal of a judicial review application filed on 19 April 2004. The judicial review application sought review of a decision of the Refugee Review Tribunal (“the RRT”) made on 26 June 2002 and handed down on 18 July 2002.
The motion seeks the summary dismissal of the judicial review application in accordance with the doctrine of res judicata, issue estoppel, Anshun estoppel and also on the basis of rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The Minister also relies upon a notice of objection to competency filed on 26 May 2004. I elected not to apply the time limit on objections to competency in Order 54B of the Federal Court Rules. The objection to competency relies upon s.477(1A) of the Migration Act 1958 (Cth) (“the Migration Act”). As the objection to competency raises an issue of jurisdiction, I have dealt with that first.
In support of the motion and objection to competency, Ms Bautista read the affidavit of Bernadette Marie Rayment made on 1 June 2004. Annexed to that affidavit is a notice of discontinuance for special leave to appeal in the High Court. Exhibited to that affidavit is a copy of the application book in the High Court. Ms Bautista also relied on written submissions prepared in support of the motion and objection to competency and filed in my chambers on 22 November…

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 SZDJD v Minister for Immigration

Details

AGLC: SZDJD v Minister for Immigration [2004] FMCA 900
Case: [2004] FMCA 900
Decision Date: 29 November 2004

CaseChat Overview and Summary

This case involves the applicant, a citizen of Bangladesh, seeking review of a decision made by the Refugee Review Tribunal (RRT) on 26 June 2002, which was handed down on 18 July 2002. The Minister for Immigration & Multicultural & Indigenous Affairs filed a motion seeking the summary dismissal of the judicial review application lodged by the applicant on 19 April 2004, citing the doctrine of res judicata, issue estoppel, Anshun estoppel, and rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). The Minister also filed a notice of objection to competency, relying on s.477(1A) of the Migration Act 1958 (Cth). The applicant appeared in person, while the Minister was represented by Ms J Bautista of Sparke Helmore.

The legal issues before the court were whether the court had jurisdiction to entertain the application for judicial review, and if not, whether the application could be summarily dismissed as incompetent. The court also needed to decide whether the Minister's costs should be awarded to the applicant and if an order should be made to prevent further applications in this court to review the RRT's decision.

The court found that the applicant's application for judicial review was incompetent as the jurisdictional issue had already been determined in previous proceedings. The court had no jurisdiction to review the RRT's decision as it was a privative clause decision within s.474 of the Act, and the time limits in s.477(1A) of the Act applied. The court had already dismissed a previous application for judicial review in NARD v Minister for Immigration [2003] FMCA 60, and that decision was upheld on appeal in the Federal Court. Therefore, the court dismissed the application for judicial review as incompetent and ordered the applicant to pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $2,500. The court also made an order that no further application by the applicant to review the RRT's decision be accepted for filing, except by leave of the court.

Orders