SZENK v Minister for Immigration - [2005] FMCA 1773

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZENK v MINISTER FOR IMMIGRATION

[2005] FMCA 1773

MIGRATION – PRACTICE AND PROCEDURE – Application for leave to file an application seeking judicial review of Refugee Review Tribunal decision – previously reviewed by Federal Magistrates Court, Federal Court and High Court – previous orders of Federal Magistrates Court not permitting filing of further application in relation to RRT decision without leave of the Court – leave refused.

Migration Act 1958 (Cth), ss.91X, 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.11

SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs
BZAR of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 413
Johnson v Gore Wood & Co [2002] 2 AC 1
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366

Applicant:

SZENK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2521 of 2005

Delivered on:

17 November 2005

Delivered at:

Sydney

Hearing date:

17 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Advocate for the Respondent:

Ms J Bautista

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application for leave to file and serve the application for judicial review dated 8 September 2005 by the applicant is denied.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Ms J Morris File No: N00/36488) made on 26 November 2002 and handed down on

19 December 2002 or the decision of the Delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (of Ms Janette McPhee) handed down on 23 November 2000 be accepted for filing without leave of this Court.
The Court directs that no further application by the applicant to review the decision of the Minister for Immigration & Multicultural & Indigenous Affairs handed down on 23 November 2000 or any of her delegates is to be accepted for filing without leave of this Court.
Pursuant to Part 13, Rule 13.11 of the Federal Magistrates Court Rules 2001 (Cth), the applicant be declared a vexatious litigant.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,200 on an indemnity basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2521 of 2005

SZENK

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for leave to file an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), which the applicant attempted to file in the Sydney Registry of the Federal Magistrates Court of Australia on 8 September 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 November 2002 and handed down on 19 December…

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: [2005] FMCA 1773
Decision Date: 17 November 2005

CaseChat Overview and Summary

The case of Szenkv Minister for Immigration involves a judicial review application brought by the applicant, Szenkv, challenging decisions made by the Refugee Review Tribunal and the Delegate of the Minister for Immigration & Multicultural & Indigenous Affairs. The applicant seeks to challenge the decisions regarding their refugee status and visa application, which were initially made by the Delegate of the Minister for Immigration & Multicultural & Indigenous Affairs on 23 November 2000, and subsequently reviewed by the Refugee Review Tribunal on 26 November 2002. The matter was brought before the court for judicial review of these decisions.

The central legal issues before the court involved the applicant's eligibility for refugee status and the procedural fairness of the decisions made by the Delegate and the Refugee Review Tribunal. The applicant argued that the decisions were flawed, and they were denied procedural fairness. The court had to determine whether the decisions were legally sound, and if the applicant's rights to a fair hearing were upheld. Additionally, the court needed to assess whether the applicant's application for leave to file and serve the judicial review application should be granted.

In its reasoning, the court found that the applicant's arguments did not provide sufficient grounds to warrant a review of the decisions made by the Delegate and the Refugee Review Tribunal. The court determined that the decisions were made in accordance with the relevant legislative provisions and that the applicant's rights to procedural fairness were adequately protected. Consequently, the court denied the applicant's application for leave to file and serve the judicial review application. Furthermore, the court issued directions that no further applications by the applicant to review these decisions would be accepted without leave of the court.

Orders

Orders of the court

The application for leave to file and serve the application for judicial review dated 8 September 2005 by the applicant is denied.

The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Ms J Morris File No: N00/36488) made on 26 November 2002 and handed down on

19 December 2002 or the decision of the Delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (of Ms Janette McPhee) handed down on 23 November 2000 be accepted for filing without leave of this Court.

The Court directs that no further application by the applicant to review the decision of the Minister for Immigration & Multicultural & Indigenous Affairs handed down on 23 November 2000 or any of her delegates is to be accepted for filing without leave of this Court.

Pursuant to Part 13, Rule 13.11 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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