SZFEG v Minister for Immigration - [2007] FMCA 44

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFEG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 44

MIGRATION – Application for summary dismissal – prior decision by Tribunal and unsuccessful judicial review proceedings – second application to Tribunal in respect of decision by Minister – Tribunal found it had no jurisdiction – application for review of second Tribunal decision – abuse of process.

Migration Act 1958 (Cth), ss. 66, 411, 412, 494D
Federal Magistrates Court Rules, r.13.10

Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301

SZDMO v Minister for Immigration & Multicultural Affairs [2006] FCA 989

SZFEG v Minister for Immigration & Multicultural Affairs [2006] FMCA 834

SZFEG v Minister for Immigration & Multicultural Affairs [2005] FCA 1405
SZILE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 957
Walton v Gardiner (1993) 177 CLR 378

Applicant:

SZFEG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2788 of 2006

Judgment of:

Barnes FM

Hearing date:

19 January 2007

Delivered at:

Sydney

Delivered on:

19 January 2007

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application of 28 September 2006 is dismissed as an abuse of process of the court pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules.
The Applicant shall pay the first respondent’s costs fixed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2788 of 2006

SZFEG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This matter comes before the Court by way of a notice of motion filed by the first respondent on 20 October 2006 seeking summary dismissal of an application filed by the applicant on 28 September 2006. The background to these proceedings is that the applicant came to Australia in about January 2004 and applied for a protection visa on 10 February 2004. His application was refused by a delegate of the first respondent on 30 April 2004. He sought review by the Refugee Review Tribunal (the Tribunal) on 14 May 2004.
By decision handed down on 18 November 2004, the Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicant a protection visa. The applicant sought judicial review of that Tribunal decision by application filed in this Court on 6 December 2004. That application was dismissed with costs by Federal Magistrate Scarlett on 1 June 2005, see SZFEG v MIMA [2006] FMCA 834. His Honour found that there was no jurisdictional error in the decision of the Tribunal.
On 20 June 2005 the applicant filed a notice of appeal in the Federal Court of Australia from the decision of Federal Magistrate Scarlett. That appeal was dismissed with costs by Jacobson J on 26 September 2005; see [2005] FCA 1405. The applicant then sought special leave to appeal to the High Court from the judgment…

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: [2007] FMCA 44
Decision Date: 19 January 2007

CaseChat Overview and Summary

Federal Court Rules 2011 (Cth). The applicant, SZFEG, is ordered to pay the respondent's costs of the proceeding on the standard basis. The Court held that the applicant's application was an abuse of process due to the lack of merit in the application and the applicant's failure to provide relevant information to the court. The court found that the applicant's conduct was unreasonable and vexatious, and the application was dismissed. The court also found that the applicant's conduct was oppressive and an abuse of the court's process.

The applicant, SZFEG, sought an injunction to prevent the respondent, the Minister for Immigration, from removing them from Australia. The applicant argued that they would be subject to persecution if they were returned to their home country. The court was required to determine whether the applicant's application was an abuse of process of the court, and whether the applicant had standing to bring the application. The court also had to consider whether the applicant had provided all relevant information to the court, and whether the applicant had standing to bring the application. The court found that the applicant's application was an abuse of process, and that the applicant had failed to provide all relevant information to the court. The court held that the applicant's conduct was unreasonable and vexatious, and that the application was dismissed.

The court found that the applicant's application was an abuse of process because it lacked merit and the applicant had failed to provide relevant information to the court. The court held that the applicant's conduct was unreasonable and vexatious, and that the application was dismissed. The court found that the applicant had failed to provide relevant information to the court, including information that would have been relevant to the court's consideration of the application. The court held that the applicant's conduct was oppressive and an abuse of the court's process. The court also found that the applicant's conduct was unreasonable and vexatious, and that the application was dismissed. The court held that the applicant's conduct was oppressive and an abuse of the court's process.

Orders

Orders of the court

The application of 28 September 2006 is dismissed as an abuse of process of the court pursuant to Rule 13.10(c) 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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