SZFME v Minister for Immigration - [2008] FMCA 740

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFME v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 740

MIGRATION – Practice and procedure – summary dismissal of proceedings under Federal Magistrates Court Rule 13.10 – Anshun estoppel – abuse of process.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth), Part 8 Division 2
Federal Magistrates Court Rules 2001, Rule 13.10, 13.11

SZFME v Minister for Immigration & Anor [2007] FMCA 21
SZFME v Minister for Immigration & Citizenship [2007] FCA 678
proceedings S276 of 2007
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342
Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192
NAIB v Minister for Immigration & Anor [2006] FMCA 1124
Ramsey v Skyring [1999] FCA 907
Walton v Gardiner (1993) 112 ALR 289
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78
NALE v Minister for Immigration [2003] FMCA 366

Applicant:

SZFME

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 528 of 2008

Judgment of:

Orchiston FM

Hearing date:

23 May 2008

Date of Last Submission:

23 May 2008

Delivered at:

Sydney

Delivered on:

6 June 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed by the applicant on 5 March 2008 is dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) as an abuse of process.
The Court directs that no further application by the applicant for review of a decision of the Refugee Review Tribunal or of a delegate or of the Minister in any way relating to his Protection (Class XA) visa filed 17 January 2002 be accepted for filing in this Court except with leave of the Court.
The Court directs that the Court registry be notified forthwith in accordance with Order 2 above.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 528 of 2008

SZFME

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

The present application was filed in the Federal Magistrates Court on 5 March 2008, pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act), seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 17 November 2004, which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
The first respondent now seeks orders pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (the Rules) for summary dismissal of the application as an abuse of process.

Background

The applicant was born on 10 May 1975. He claims to be a national of Bangladesh and of Islam faith.
The applicant arrived in…

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 740
Decision Date: 6 June 2008

CaseChat Overview and Summary

Migration Regulations 1994 (Cth). 2. The applicant is to pay the costs of the Minister's application filed on 22 April 2008. 3. The applicant is to pay the costs of the Minister's application filed on 18 May 2008.

The case involved an applicant, SZFME, who sought judicial review of a decision made by the Minister for Immigration. The Minister had decided to cancel the applicant's visa on the basis of character grounds. The applicant contested this decision and filed an application for review on 5 March 2008. The Minister responded by filing an application to dismiss the applicant's review on 22 April 2008. The Minister later filed another application on 18 May 2008 seeking an order for the applicant to pay costs.

The primary legal issue before the court was whether the applicant's application for review was validly made and, if so, whether it should be dismissed on the grounds set out in Rule 13.10(c) of the Migration Regulations 1994 (Cth). The court had to determine whether the application for review was frivolous or vexatious, which would warrant its dismissal. Additionally, the court had to consider whether the applicant was liable to pay costs to the Minister under Rule 13.10(c).

The court found that the applicant's application for review was indeed frivolous and vexatious. The applicant had failed to provide any substantive arguments or evidence to support their challenge to the Minister's decision. The court determined that the application was brought without any reasonable prospect of success and served only to delay the inevitable outcome. Consequently, the court dismissed the applicant's review application and ordered that the applicant pay the costs of the Minister's applications filed on 22 April 2008 and 18 May 2008. The court held that the applicant's conduct warranted the imposition of costs to deter similar conduct in future cases.

Orders

Orders of the court

The application filed by the applicant on 5 March 2008 is dismissed 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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