SZERH v Minister for Immigration - [2008] FMCA 1376

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERH v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1376

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal had jurisdiction to consider review application – prior judicial review of same issues – abuse of Court’s process.

Federal Magistrates Court Rules 2001, r.44.12
Migration Act 1958 (Cth), ss.48B; 411; 414; 424A; 430(1)(c); 430(1)(d)

Applicant:

SZERH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2063 of 2008

Judgment of:

Emmett FM

Hearing date:

30 September 2008

Date of Last Submission:

30 September 2008

Delivered at:

Sydney

Delivered on:

30 September 2008

REPRESENTATION

Applicant appeared in person assisted by a Punjabi interpreter

Solicitors for the Respondent:

Ms E. Warner-Knight, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2063 of 2008

SZERH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The first respondent seeks an order pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 that the application filed on 8 August 2008 seeking judicial review of a decision of the Refugee Review Tribunal dated 27 June 2008 be dismissed on the basis that to allow the applicant's proceeding to continue would be an abuse of the Court's process having regard to the litigation history of the parties.
On 3 June 2004, the applicant lodged an application for a protection visa.
On 10 June 2004, a delegate of the minister (“the Delegate”) refused the applicant a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 13 July 2004, the applicant lodged an application with the Refugee Review Tribunal for review of the Delegate's decision.
On 12 October 2004, the Refugee Review Tribunal affirmed the decision of the Delegate to refuse the applicant a protection visa.
On 9 November 2004, the applicant filed an application in this Court seeking judicial review of that decision of the Refugee Review Tribunal.

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: [2008] FMCA 1376
Decision Date: 30 September 2008

CaseChat Overview and Summary

The Federal Magistrates Court was asked to review the decision of the Refugee Review Tribunal (RRT) in the case of SZERH v Minister for Immigration & Citizenship. The applicant, SZERH, sought judicial review of the RRT's decision dated 27 June 2008, which dismissed SZERH's application for a further review of the RRT's earlier decision to refuse SZERH's protection visa application. The Minister for Immigration and Citizenship argued that the proceeding should be dismissed as an abuse of the Court's process, given the extensive litigation history between the parties. The key legal issues involved whether the RRT had jurisdiction to consider SZERH's further review application and whether allowing the proceeding to continue would constitute an abuse of the Court's process.

The Court considered the principles established in previous cases, which held that the RRT could not accept a second application for review of the same delegate's decision once it had been confirmed. The Court also noted that the RRT's decision that it had no jurisdiction to review the delegate's decision, having already reviewed it, was correct. Given SZERH's extensive litigation history, including previous unsuccessful judicial review applications and an appeal to the High Court, the Court concluded that allowing the present application to proceed would be an abuse of the Court's process. Consequently, the Court dismissed the application with costs, finding it inappropriate for the applicant to continue pursuing the matter.

Orders