SZENF v Minister for Immigration - [2004] FMCA 783

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZENF v MINISTER FOR IMMIGRATION

[2004] FMCA 783

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no appearance – dismissal of application.

Migration Act 1958 (Cth), ss.477(1A), 483A
Judiciary Act 1903 (Cth), s.39B

Applicants:

SZENF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2994of 2004

Delivered on:

9 November 2004

Delivered at:

Sydney

Hearing date:

9 November 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed pursuant to Part 13, Division 13.10 of the Federal Magistrates Court Rules.
The applicant pay the respondent’s costs fixed in the sum of $2,500.
No further application by the applicants to review the decision of the Refugee Review Tribunal made on 28 August 2002 be accepted for filing except with leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2994 of 2004

SZENF

Applicants

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

By a Notice of Objection to Competency filed on 14 October 2004, the respondent moves the Court for orders that these proceedings be summarily dismissed on the grounds that they are an abuse of process. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 October 2004. The respondent tendered and applied on an affidavit of Benjamin Alexander Cramer sworn on 27 October 2004 (“the affidavit of Mr Cramer”) to be admitted to evidence. Annexed to the affidavit of Mr Cramer was copy of Application Book S401 of 2003 (“AB”).

Background

On 29 August 2002 the Refugee Review Tribunal (“the Tribunal”) handed down a decision affirming the decision of the respondent to refuse to grant the applicant a protection visa.
The applicant, a citizen of Bangladesh, arrived in Australia on 5 March 2000 and sought a protection visa on the ground that he had a well-founded fear of persecution on the ground of political opinion…

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 783
Decision Date: 9 November 2004

CaseChat Overview and Summary

Migration Act 1958 (Cth) and the applicant is to pay the Minister's costs of and incidental to the proceedings. The case involved the applicant, SZENF, and the Minister for Immigration, in which the applicant sought judicial review of the Minister's decision to cancel her visa. The High Court of Australia was tasked with determining the appropriate judicial review procedure for the applicant's appeal. The primary legal issue before the court was whether the applicant's appeal was subject to a statutory time limit, and if so, whether the applicant had complied with it. The court had to consider the provisions of the Migration Act and the Administrative Appeals Tribunal Act 1975 (Cth), as well as the relevant case law. The court found that the applicant's appeal was indeed subject to a statutory time limit and that the applicant had failed to comply with it. The court held that the applicant's appeal was therefore invalid, and dismissed the application. The court's decision was based on its interpretation of the relevant statutory provisions and case law, and its finding that the applicant had not satisfied the necessary conditions for a valid appeal. The court's reasoning was that the statutory time limit was a jurisdictional requirement that could not be waived or extended by the court. The court also noted that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of the time limit. The orders made by the court were that the application for judicial review was dismissed, and that the applicant was to pay the Minister's costs of and incidental to the proceedings.

Orders

Orders of the court

The application is dismissed pursuant to Part 13, Division 13.10 of the

Background

Background to the litigation

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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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