SZFIO v Minister for Immigration - [2005] FMCA 1391

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIO v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1391

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – where applicant did not attend RRT hearing.

PRACTICE & PROCEDURE – Competency – Notice of objection to competency – summary dismissal.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.475A; 477(1A)
Federal Magistrates Court Rules 2001, R. 13.10

Minister for Immigration & Multicultural Affairsex parte; Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] 52 FCR 537

Applicant:

SZFIO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3774 of 2004

Judgment of:

Scarlett FM

Hearing date:

8 September 2005

Date of Last Submission:

8 September 2005

Delivered at:

Sydney

Delivered on:

9 September 2005

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Ms Warner-Knight
Australian Government Solicitor

ORDERS

The application is dismissed.
In the alternative, the application is not competent having been commenced out of time.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,500.00.
The hearing date of 18 November 2005 is vacated.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3774 of 2004

SZFIO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 5 June 2003 and handed down on 23 July 2003. The applicant filed his original application on

24 December 2004 and filed an amended application on 21 April 2005. In his original application the applicant sought the following orders:
a)an order of or declaration to redirect the applicant's claims to the RRT for further consideration and to advise the Tribunal to make a further consideration of this matter;
b)an order that no action is taken to remove the applicant from Australia while the decision is pending;
c)an order for costs and any further orders that this honourable Court may deem appropriate.
The orders sought are in effect, an order of mandamus and an order of prohibition. The original application is said to be under the Judiciary Act 1903 (Cth) and it is quite clear that the ground of jurisdiction is under s.39B of the Judiciary Act.
The background to this matter is that the applicant is a citizen of Bangladesh. He arrived in Australia on 7 October 1999. He had originally obtained a student visa and, as he told the Court, he had commenced a course of study at the Edith Cowan University in Western Australia.…

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 1391
Decision Date: 9 September 2005

CaseChat Overview and Summary

In the matter of SZFIO versus the Minister for Immigration, the applicant, a foreign national, sought judicial review of a decision made by the Refugee Review Tribunal (RRT) that upheld a delegate's decision not to grant the applicant a protection visa. The central issue was whether the RRT's decision should be reviewed due to the applicant's absence at the hearing, as well as the timing and competency of the application for review. The court had to determine whether the tribunal's decision was legally flawed and whether the application for judicial review was appropriately filed.

The court addressed the procedural issues first, focusing on the timeliness and the competency of the applicant's filing. It found that the application was not lodged within the statutory time limit, and therefore was out of time. Additionally, the applicant did not file a notice of objection to the RRT's decision on the basis of competency within the required timeframe. The court held that the absence of such a notice precluded the applicant from later challenging the competency of the RRT's decision. Given these findings, the court dismissed the application on the basis that it was both untimely and incompetent.

In light of the dismissal, the court also considered costs and ordered the applicant to pay the respondent's costs, which were fixed at $3,500.00. Furthermore, the hearing date scheduled for 18 November 2005 was vacated due to the dismissal of the application. The court's decision underscores the importance of adhering to statutory time limits and procedural requirements in judicial review proceedings, particularly in cases involving migration and visa applications.

Orders

Orders of the court

The application is dismissed.

In the alternative, the application is not competent having been commenced out of time.

The Applicant is to pay the Respondent’s costs fixed in the sum of $3,500.00.

The hearing date of 18 November 2005 is vacated.

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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