SZDOI v Minister for Immigration - [2004] FMCA 612

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDOI v MINISTER FOR IMMIGRATION

[2004] FMCA 612

MIGRATION – Application to dismiss – where proceedings had already been heard and appealed up to High Court.

Migration Act 1958 (Cth), ss.91R(1)(c), 418(3), 424A(1), 424A(3), 424A(3)(a)

Minister for Immigration v Yusuf (2001) 206 CLR 323
BC v the Minister for Immigration and Multicultural Affairs [2001] FCA 1669

Applicant:

SZDOI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1430 of 2004

Delivered on:

8 September 2004

Delivered at:

Sydney

Hearing date:

8 September 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed pursuant to Rule 13.10 of the Federal Magistrates Rules.
The applicant may not institute any proceedings in this Court against the respondent seeking a review of the decision handed down by the Refugee Review Tribunal on 11 September 2002 without the applicant first obtaining leave of this Court.
The respondent to notify the applicant within seven days of the orders made and the provisions of Rule 16.05(2) of the Federal Magistrates Court rules.
The applicant pay the respondent's costs in the amount of $1,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1430 of 2004

SZDOI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

There is before me today an application made by way of motion, filed by the respondent Minister and supported by an affidavit of Angela Louise Radich dated 27 August 2004. The Notice of Motion seeks the dismissal of the proceedings brought by the applicant for judicial review of a decision of the Refugee Review Tribunal made on 21 August 2002 and handed down on 11 September 2002.
I have had the pleasure of the attendance in my Court of the applicant on a previous occasion, 2 April 2003, when the very same decision of the Tribunal was brought to be reviewed. At that time the applicant was represented by an experienced migration solicitor.
Having considered the matters raised by him on behalf of the applicant, I was unable to accede to the request for review and gave my reasons for so doing in the judgment numbered [2003] FMCA 133.
The applicant appealed my decision to the Federal Court. When the matter was heard by Tamberlin J pursuant to a direction of the Chief Justice on 15 October 2003, His Honour dismissed the appeal.
The applicant then sought leave to appeal to the High Court. That appeal was abandoned. The applicant alleges that the abandonment was not due to any lack of legal armour, but purely to his inability to raise the appropriate fee.
Ten days after the application for special leave was deemed to be abandoned on 5 May 2004, the applicant filed this application and four days later he filed a further one, which on 24 August 2004 was dismissed by Registrar Hedge.
The grounds of the application are six-fold. The first three grounds relate to…

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: [2004] FMCA 612
Decision Date: 8 September 2004

CaseChat Overview and Summary

In the Federal Circuit Court, SZDOI, an individual, sought to challenge a decision by the Refugee Review Tribunal that had denied their application for refugee status. The Minister for Immigration, as the respondent, defended the Tribunal's decision. The matter was heard by the Court which needed to decide whether the applicant could proceed with their application without first obtaining leave and, if so, whether the application itself should succeed.

The legal issues before the Court were the procedural requirements of Rule 13.10 of the Federal Magistrates Rules, which governs the initiation of proceedings in the Federal Circuit Court. Specifically, the Court needed to determine if the applicant could bring the application directly to the Court or if they needed to first obtain leave, and if obtaining leave was necessary, whether the application should still proceed to substantive consideration. The Court also had to consider the provisions of Rule 16.05(2) of the Federal Magistrates Court Rules in relation to the costs associated with the application.

The Court found that the applicant was required to obtain leave before proceeding with the application. The Court determined that the applicant had not demonstrated sufficient grounds to warrant leave to proceed directly to the substantive merits of the case. Consequently, the application was dismissed under Rule 13.10 of the Federal Magistrates Rules. The Court ordered that the respondent notify the applicant of these orders within seven days, and that the applicant pay the respondent's costs in the amount of $1,800.00.

Orders

Orders of the court

Application dismissed pursuant to Rule 13.10 of the Federal Magistrates Rules.

The applicant may not institute any proceedings in this Court against the respondent seeking a review of the decision handed down by the Refugee Review Tribunal on 11 September 2002 without the applicant first obtaining leave of this Court.

The respondent to notify the applicant within seven days of the orders made and the provisions of Rule 16.05(2) of the Federal Magistrates Court rules.

The applicant pay the respondent's costs in the amount of $1,800.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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