SZFJP v Minister for Immigration - [2005] FMCA 1903

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJP v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1903

MIGRATION – Visa – protection (class XA) 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 – Applicant a citizen of Lebanon.

PRACTICE & PROCEDURE – Notice of Objection to Competency – privative clause decision – where application filed more than 28 days after the Applicant was notified of the decision – where Applicant notified on 24 July 2003 but application for judicial review not filed until 4 January 2005 – unnecessary to make finding where application is to be dismissed on a final basis – delay – one year and six months.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.415, 417, 474, 477(1A)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
VWZG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1018
SZATJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 168
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198
SZGAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1785
SZBDN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 656

Applicant:

SZFJP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 9 of 2005

Delivered on:

15 December 2005

Delivered at:

Sydney

Hearing date:

13 December 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms McNamara

Solicitors for the Respondent:

Phillips Fox

ORDERS

Leave granted to join the Refugee Review Tribunal as a party to the proceedings.
The Refugee Review Tribunal is joined as Second Respondent to the application.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs in the sum of $5,000.00.
I allow twelve (12) months to pay.
I RECOMMEND that the Minister again give consideration to substituting for the decision of the Refugee Review Tribunal under s.415 another decision, being a decision that is more favourable to the Applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 9 of 2005

SZFJP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

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 1903
Decision Date: 15 December 2005

CaseChat Overview and Summary

In SZFJP v Minister for Immigration, the applicant, a non-citizen, sought leave to appeal a decision of the Refugee Review Tribunal (RRT) which had affirmed the Minister’s decision to cancel their visa. The Federal Court was required to determine whether the applicant should be granted leave to appeal and, if so, the outcome of the appeal. The central issue before the court was whether the applicant had demonstrated sufficient grounds to warrant leave to appeal, considering the outcome of the RRT’s decision and the merits of the application. Additionally, the court had to assess whether the RRT’s decision was open to reconsideration under section 415 of the Migration Act.

The court held that while the applicant had not demonstrated sufficient grounds for leave to appeal, it was appropriate to join the RRT as a party to the proceedings, given the reliance on its decision. The court found that the RRT’s decision was lawful and correctly made, and thus the application for leave to appeal was dismissed. The court noted that the RRT had appropriately considered all relevant factors and that there was no basis to substitute its decision. The court also recommended that the Minister consider substituting the RRT's decision with a more favourable outcome for the applicant, although this was not a final order of the court.

In its final orders, the court granted leave to join the RRT as a party, joining it as the Second Respondent. The application was dismissed, and the applicant was ordered to pay the Minister's costs. The court allowed the applicant twelve months to pay the costs, and recommended that the Minister reconsider the RRT's decision in light of the applicant's circumstances.

Orders

Orders of the court

Leave granted to join the Refugee Review Tribunal as a party to the proceedings.

The Refugee Review Tribunal is joined as Second Respondent to the application.

The Application is dismissed.

The Applicant is to pay the First Respondent’s costs in the sum of $5,000.00.

I allow twelve (12) months to pay.

I RECOMMEND that the Minister again give consideration to substituting for the decision of the Refugee Review Tribunal under s.415 another decision, being a decision that is more favourable to the Applicant.

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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