SZDXC v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDXC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1774

MIGRATION – Dismissal of substantive application for abuse of process.

Migration Act 1958, s.476(2)(a)
Federal Magistrates Court Rules 2001

Wu v Minister for Immigration (1994) 48 FCR 294

Applicant:

SZDXC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File number:

SYG2370 of 2006

Judgment of:

Raphael FM

Hearing date:

20 November 2006

Date of last submission:

20 November 2006

Delivered at:

Sydney

Delivered on:

20 November 2006

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant pay the first respondent’s costs assessed in the sum of $1,750.00 within 28 days.
The court shall not accept for filing any further application by the applicant to review the decision of the Refugee Review Tribunal made on 13 May 2004 or the decision of the delegate of the first respondent made on 24 October 2003 without prior leave of the court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2370 of 2006

SZDXC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Minister respondent to the substantive application seeks summary dismissal of that application on the grounds that it relates to a decision of a delegate and is thus a matter excluded from the jurisdiction of this court pursuant to s.476(2)(a) of the Migration Act 1958. The Minister also suggests that the proceedings should be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 on the basis that the application does not disclose a reasonable cause of action or the proceeding or claim for relief is an abuse of the process of the court. I am of the view that all three of these grounds are made out.
The decision of the delegate which is the subject matter of this case, was made on 24 October 2003. Although there may have been some irregularities in the way in which the decision was communicated to the applicant, and I make no finding on this, the applicant was able to seek review from the Refugee Review Tribunal by lodging an application on 12 November 2003. The Tribunal affirmed the delegate’s decision by way of grounds and reasons published on 13 May 2004.
The applicant then proceeded, as was his right, to challenge that finding in this court where his challenge was dismissed on 9 June 2005 by Federal Magistrate Smith. Again exercising his rights, the applicant appealed to the Federal Court where on 15 September his Honour Hely J dismissed his notice of appeal. The applicant sought special leave to appeal to the High Court but this was refused by their Honours Kirby and Callinan JJ on 3 August 2006. It was on 25 August 2006 that the applicant filed these proceedings seeking review of the delegate’s decision.
The delegate’s decision is a primary decision over which this court does not have jurisdiction by virtue of the provision which I have cited previously. In any event, there is sufficient authority such as Wu v Minister for Immigration (1994) 48 FCR 294 per Wilcox J at [298-299] that where a party has an opportunity for full-scale merits review of an administrative decision and exercises that right, the decision of the Tribunal effectively cures any alleged difficulty arising out of the manner in which the primary decision may have been made.
As the Tribunal’s decision has itself been the subject of appeals up to the highest court in the land, any further agitation of the grounds for refusing the applicant Australia’s protection would be an abuse of the process of this court.
I dismiss the substantive application. I order that the applicant pay the respondent’s costs which I assess in the sum of $1,750.00 to be paid within 28 days. I also order that the court not accept for filing any further application by the applicant to review the decision of the Refugee Review Tribunal made on 13 May 2004 or the decision of the delegate of the first respondent made on 24 October 2003 without prior leave of the court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:

The matter in SZDXC v Minister for Immigration involved an applicant challenging the decision of the Minister for Immigration, as represented by the Minister for Immigration and Border Protection, to refuse their visa application. The applicant sought to appeal the decision of the Refugee Review Tribunal and the delegate of the Minister for Immigration, asserting that they had been denied a fair hearing. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the applicant had been denied procedural fairness during the visa application process, and whether the court should grant leave for the applicant to file further applications for judicial review. The court needed to assess if the applicant's rights to a fair hearing had been compromised and whether the refusal of the visa application was lawful.

The court considered the procedural fairness of the visa application process and the merits of the applicant's claims. It found that the applicant had not been denied procedural fairness, as all necessary steps were taken to ensure a fair process. The court also examined the applicant's history of seeking judicial review and found that their actions amounted to an abuse of process. Consequently, the court dismissed the application, ordered the applicant to pay costs, and prohibited further applications without prior leave of the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established