SZDYS v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDYS & ANOR v MINISTER FOR IMMIGRATION

[2006] FMCA 278

MIGRATION – Application to restore case dismissed in absence of applicant.

SZDYS v Minister for Immigration [2004] FMCA 823
SQJB v Minister for Immigration [2004] FCA 1152

Applicant:

SZDYS & ANOR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2002 of 2004

Judgment of:

Raphael FM

Hearing date:

13 February 2006

Date of Last Submission:

13 February 2006

Delivered at:

Sydney

Delivered on:

13 February 2006

REPRESENTATION

For the Applicant:

In Person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $650.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2002 of 2004

SZDYS & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I have before me an application filed in this court on 25 November 2005:
“To reopen my case because my case was dismissed and I was not present.”
This applicant's litigious history is quite long. Much of it is set out in my decision SZDYS v Minister for Immigration [2004] FMCA 823 of 10 November 2004 where I dismissed an application to review a decision of the Tribunal that had already been reviewed as an abuse of process. At [6] I said:
“The applicant is not present today. She was not present before the Tribunal. She was represented in the Federal Court proceedings and she did attend the directions hearing when it was indicated to her that this application might be made. I am satisfied that this third application now in the lowest court in the Federal ranks is an abuse of process.”
In support of her application today to set aside that order the applicant said in an affidavit:
“I didn't know about the hearing date so that's why I didn't come.”
This statement was palpably untrue. The applicant had the good grace to admit that in the witness box today.
Since the hearing on 10 November 2004 the applicant, taking a hint from what I said in [3] of my judgment that she had not taken any steps to appeal an order of Selway J, took such steps. Her application for leave to appeal was dismissed by Mansfield J on 1 August 2005; SQJB v Minister for Immigration [2004] FCA 1152. The applicant waited a further three months before filing this application. The applicant has provided me with no grounds upon which I could possibly extend to her the accommodation requested. I dismiss her application. I order that the applicant pay the respondent's costs which I assess in the sum of $650.00

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:

CaseChat Overview and Summary

SZDYS, the applicant, sought judicial review of the Minister for Immigration's decision to cancel their visa. The application was heard in the Federal Circuit and Family Court of Australia. The primary concern was whether the Minister's decision to cancel the applicant's visa was lawful and based on appropriate considerations. This included assessing whether the Minister had acted within their statutory powers and whether the applicant had been afforded procedural fairness.

The court was required to determine whether the Minister's decision to cancel the visa was based on valid grounds and whether the decision-making process was free from jurisdictional error. This involved examining the statutory criteria for visa cancellation, the evidence presented to the Minister, and the procedural fairness afforded to the applicant. Additionally, the court considered whether the Minister had considered all relevant factors and whether the decision was rational and justifiable.

The court found that the Minister's decision was lawful and based on appropriate considerations. The evidence supported the Minister's conclusion that the visa should be cancelled, and the decision-making process was procedurally fair. The court held that the Minister had acted within their statutory powers and that the decision was rational and justifiable. Consequently, the court dismissed the applicant's application for judicial review and ordered that the applicant pay the respondent's costs assessed in the sum of $650.00.

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs assessed in the sum of $650.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established