SZEUB v Minister for Immigration - [2006] FMCA 1589

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEUB v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1589

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – show cause hearing pursuant to r.44.12 Federal Magistrates Court Rules 2001 – whether this Court has jurisdiction to entertain applicant’s application for review of decision of a delegate of first respondent.

Migration Act 1958 (Cth), ss.476; 476(2)(a)
Federal Magistrates Court Rules 2001, rr.44.11; 44.12

Applicant:

SZEUB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3620 of 2005

Judgment of:

Emmett FM

Hearing date:

18 October 2006

Date of last submission:

18 October 2006

Delivered at:

Sydney

Delivered on:

18 October 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:

Ms K. Crawley, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3620 of 2005

SZEUB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application by the first respondent that the applicant's application filed in this Court on 9 December 2005 be dismissed by reason of the fact that pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), this Court has no jurisdiction to entertain the applicant's application. Power for the Court to make such an order is contained in rr.44.12 and 44.11 of the Federal Magistrates Court Rules 2001.
At the heart of the first respondent's contention is a submission that the applicant's application makes it clear that the applicant is seeking relief in respect of the decision of the delegate of the first respondent (“the Delegate”) dated 11 November 2003.

RECORDED : NOT TRANSCRIBED

In those circumstances, s.476 of the Act states that the Federal Magistrates Court has no jurisdiction in relation to, relevantly, a primary decision. A primary decision is defined as including a decision that is reviewable under Part 5 or Part 7, or would have been so reviewable if an application for such review had been made within a specified period. Plainly the decision of the Delegate in the case before this Court is a primary decision.
I now turn to consider the issue of whether the applicant’s application sought judicial review of only the Delegate’s decision.
The applicant's application seeks the following relief:
“Orders sought by Applicant
1. An order and or declaration that the notification by the delegate of the minister (emphasis added) to refuse to grant to (sic) protection visa invalid and has no effects, pursuant to section 44 of the Judiciary Act 1903 (Cth).
2. An order to redirect this matter to DIMIA to notify the application according to law.
3. An order and declaration that the decision by the delegate of the minister (emphasis added) has no effect.
...
Application for interlocutory relief
1. An application may be heard on order (or declaration) to redirect the applicants (sic) claims to the DIMIA for further consideration of this matter and…

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: [2006] FMCA 1589
Decision Date: 18 October 2006

CaseChat Overview and Summary

The case of Szeub v Minister for Immigration & Anor involved the applicant, Szeub, seeking a review of a decision made by a delegate of the first respondent, the Minister for Immigration & Multicultural Affairs. The applicant's application for review was filed in the Federal Magistrates Court of Australia. The second respondent, the Refugee Review Tribunal, was also named in the proceedings, though the primary focus was on the delegate's decision. The legal issues that the court had to address included whether the Federal Magistrates Court had jurisdiction to review the decision of the delegate under the Migration Act 1958 (Cth) and the Federal Magistrates Court Rules 2001.

The court examined the provisions of the Migration Act, specifically section 476, which states that the Federal Magistrates Court does not have jurisdiction to review primary decisions, which include decisions reviewable under Part 5 or Part 7 of the Act. The court noted that the decision in question was a primary decision made by the delegate on 11 November 2003. The applicant's application clearly sought relief in respect of this decision, and there was no indication that the applicant was seeking review of any other decision, including that of the Refugee Review Tribunal. The application and grounds provided by the applicant were specifically directed at the delegate’s decision, and there was no relief sought or grounds provided concerning any other decision. Based on this, the court concluded that the Federal Magistrates Court did not have jurisdiction to entertain the applicant’s application for review of the delegate’s decision.

The court dismissed the proceeding on the grounds that the Federal Magistrates Court lacked the requisite jurisdiction to review the decision of the delegate under the provisions of the Migration Act and the Federal Magistrates Court Rules. The court certified that the reasons for judgment were a true copy of its decision and that the proceeding was dismissed accordingly.

Orders