SZFIR v Minister for Immigration - [2008] FMCA 365

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 365

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – application incompetent and an abuse of process.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.474

Blair v Curran (1939) 62 CLR 464
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Somanader v Minister for Immigration [2000] FCA 1192
SZBZF v Minister for Immigration & Anor [2006] FMCA 145
SZBZF v Minister for Immigration & Anor [2006] FCA 471
SZDCJ v Minister for Immigration (2004) 212 ALR 581; [2004] FCA 1500
SZFIR v Minister for Immigration & Anor [2006] FMCA 1451

SZFIR v Minister for Immigration [2007] FCA 424
SZFIR v Minister for Immigration & Anor [2008] HCATrans 63
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342
Wong v Minister for Immigration (2004) 204 ALR 722

Applicant:

SZFIR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 507 of 2008

Judgment of:

Driver FM

Hearing date:

25 March 2008

Delivered at:

Sydney

Delivered on:

25 March 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Hooper
DLA Phillips Fox

INTERLOCUTORY ORDERS

The application is dismissed as incompetent and pursuant to rules 13.10(a), 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by this applicant to review the decision of the Refugee Review Tribunal handed down on 14 March 2006 or the decision of the delegate that preceded it or any notification of the decision of the delegate or decision of the Refugee Review Tribunal be accepted for filing by this Court except by leave of a Federal Magistrate.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 507 of 2008

SZFIR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 3 March 2008 to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 14 March 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had claimed political persecution. The applicant was unsuccessful in persuading the Tribunal of his political profile.
The application to this Court is supported by the applicant's own affidavit filed on 3 March 2008 in which he sets out both factual assertions and legal submissions. Those legal submissions deal in large part with the merits of the Tribunal decision.

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 365
Decision Date: 25 March 2008

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of SZFIR v Minister for Immigration & Anor addresses the applicant's challenge against the Refugee Review Tribunal's decision not to grant him a protection visa. The applicant, a citizen of Bangladesh, had previously applied for a protection visa and had his application refused by a delegate of the Minister for Immigration & Citizenship. This decision was upheld by the Tribunal, and subsequent judicial review applications by the applicant in the Federal Magistrates Court, Federal Court, and High Court were all unsuccessful. The present application, filed on 3 March 2008, seeks to review the same Tribunal decision that has already been the subject of multiple legal proceedings.

The legal issues before the Court revolve around the competence of the application and whether it constitutes an abuse of process, given the previous judicial determinations. The Minister for Immigration & Citizenship argues that the application is frivolous, vexatious, and an abuse of process due to the applicant's repeated attempts to challenge the same decision, which has already been conclusively determined by higher courts. The Court must consider whether it has jurisdiction to hear the application under section 474 of the Migration Act 1958 (Cth), and whether the application meets the criteria for summary dismissal under the Federal Magistrates Court Rules 2001 (Cth).

The Court found that the decision of the Tribunal had been reviewed and dismissed by the Federal Magistrates Court, Federal Court, and High Court, which collectively established that the decision was free from jurisdictional error and thus a privative clause decision under section 474(1) of the Migration Act. Consequently, the Court lacks jurisdiction to entertain the application. Furthermore, the Court agreed with the Minister that the application was frivolous and vexatious, and an abuse of process, as the applicant had no reasonable prospects of success and was rehashing previously determined issues. The Court dismissed the application as incompetent and pursuant to rules 13.10(a), 13.10(b), and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). Additionally, the Court ordered that no further applications by the applicant regarding the same decision be accepted without leave of a Federal Magistrate. The Court also ordered the applicant to pay the Minister's costs and disbursements in the sum of $1,000.

Orders