SZFIO v Minister for Immigration - [2006] FMCA 139

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 139

MIGRATION – Review of delegate’s decision – refusal of a protection visa – summary dismissal of application – delegate’s decision already reviewed by the RRT, which decision had previously been judicially reviewed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.412

Chan Ta Srey v Minister for Immigration [2003] FCA 1292

Minister for Immigration v Alam [2005] FCAFC 132

NAMG v Minister for Immigration (No 1) [2003] FMCA 541
SZCTH v Minister for Immigration (No 1) [2004] FMCA 211
SZFIO v Minister for Immigration [2005] FMCA 1391

SZGKO v Minister for Immigration [2005] FMCA 1254
SZGMZ v Minister for Immigration [2005] FMCA 1549
Wu v Minister for Immigration (1994) FCR 294
Zubair v Minister for Immigration [2004] FCAFC 248

Applicant:

SZFIO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3115 of 2005

Judgment of:

Driver FM

Hearing date:

6 February 2006

Delivered at:

Sydney

Delivered on:

6 February 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Ms E Warner Knight
Australian Government Solicitor

INTERLOCUTORY ORDERS

The title of the respondent be changed to the Minister for Immigration and Multicultural Affairs.
The application is dismissed, pursuant to rules 13.10(a) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $4,000.
No further application by this applicant to review the decision of the delegate made on 8 August 2002 be accepted for filing in this Court, except by leave.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3115 of 2005

SZFIO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a motion of which notice was given on 1 December 2005 seeking the summary dismissal of a judicial review application filed on 26 October 2005. The judicial review application sought review of a decision of a delegate of the Minister not to grant the applicant a protection visa. The delegate's decision has been the subject of reconsideration by the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 23 July 2003 and has itself been the subject of judicial review proceedings in this Court.
The Minister's motion is supported by the affidavit of Elizabeth Warner Knight filed on 1 December 2005. I receive that affidavit as evidence. I am satisfied that the facts deposed to in that affidavit are accurate and I accept them. The relevant background facts are adequately summarised in the Minister's written submissions filed on 13 January 2006. I adopt as background paragraphs 2-4 of those written submissions:
The relevant background to this matter is set out in the affidavit of Elizabeth Warner Knight affirmed on 17 November 2005 (“the affidavit”). A Delegate of the respondent refused to grant…

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 139
Decision Date: 6 February 2006

CaseChat Overview and Summary

SZFIO, an applicant for a protection visa, sought judicial review of the Minister for Immigration and Multicultural Affairs' decision to refuse their application. The Federal Magistrates Court had previously dismissed a similar application by SZFIO, which sought review of the Refugee Review Tribunal's decision to uphold the Minister's decision. In the current proceedings, the Minister sought summary dismissal of SZFIO's application, arguing it disclosed no reasonable cause of action and constituted an abuse of process. The court agreed, finding that the delegate's decision had already been reviewed by the RRT and was subsumed in the RRT's decision. The court further held that the application was an abuse of process because it sought to review a decision that was reviewable and had already been reviewed by the RRT.

The court reasoned that even if the delegate's decision contained a jurisdictional error, such defect would be cured by the RRT's valid decision. The court also found that the application was an abuse of process because it was an attempt to relitigate a decision that had already been reviewed and dismissed by the court. The court held that an application to review a decision of a delegate that is reviewable and has been reviewed by a review tribunal is an abuse of the court's process. The court further held that the applicant's concerns were genuine, but his approach had been misguided. The court ordered that the application be dismissed and that the applicant pay the Minister's costs on an indemnity basis, fixed in the sum of $4,000. The court also ordered that no further application by SZFIO to review the delegate's decision be accepted for filing in the court except by leave. The court further ordered that the title of the respondent be changed to the Minister for Immigration and Multicultural Affairs.

Orders