SZGRY v Minister for Immigration - [2006] FMCA 450

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGRY v MINISTER FOR IMMIGRATION

[2006] FMCA 450

MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a protection visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 48A, 48B, 91X, 417, 474, 483A

Applicant S1083/2003 v Minister for Immigration [2004] FCA 1455
Applicant S1874 of 2003 v Refugee Review Tribunal [2003] FCA 1617
Bal v Minister for Immigration [2001] FCA 1191

Bal v Minister for Immigration (2002) 189 ALR 566
BC v Minister for Immigration (2001) 67 ALD 60
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435
Minister for Immigration v Ozmanian (1996) 137 ALR 103
Minister for Immigration v Li (2000) 103 FCR 486

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
SZEDD v Minister for Immigration [2005] FMCA 112

Applicant:

SZGRY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File number:

SYG1790 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

10 March 2006

Delivered at:

Sydney

Delivered on:

24 April 2006

REPRESENTATION

Applicant:

Applicant appeared in person with the assistance of an Bengali interpreter

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1790 of 2005

SZGRY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court on 8 July 2005 for a judicial review of the decision of the delegate of the respondent (“the delegate”), made on or around 14 June 2005 informing the applicant that:
a)He was not entitled to make a further application for a protection visa unless the Minister decided that it was in the public interest for him to do so; and
b)His request (apparently implicit) for permission to lodge a fresh application did not meet the guidelines and he was therefore not permitted to apply again for a protection visa.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has in previous proceedings been given the pseudonym “SZGRY”.
The respondent’s solicitors tendered and applied for the affidavit of Kristy Lee Alexander, sworn on 7 September 2005 (“Affidavit of Ms Alexander”) to be admitted into evidence.

Litigation history

The affidavit of Ms Alexander and the written submissions of

Mr Kennett provide a convenient summary of the litigation history of the applicant, which I have adopted and reproduce as follows:
a)On 31 December 1996, the applicant in these proceedings lodged an application…

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 450
Decision Date: 24 April 2006

CaseChat Overview and Summary

SZGRY v Minister for Immigration concerns an application by the applicant, a citizen of Bangladesh, for judicial review of a decision by a delegate of the respondent, the Minister for Immigration, to refuse his application for a protection visa. The matter was heard in the Federal Court of Australia. The applicant, who had previously been denied a protection visa and subsequently sought judicial review, applied for a protection visa for a second time, which was also refused. He then sought judicial review of the second refusal.

The primary legal issue before the court was whether the Tribunal's decision on the applicant's previous application, affirming the delegate's refusal of a protection visa, should be reconsidered. The applicant argued that the Tribunal had erred in applying the test for refugee status under section 36(2) of the Act. The court had to determine whether the applicant's arguments had merit and if the Tribunal's decision warranted reconsideration.

In dismissing the application, the court found that the applicant's arguments did not demonstrate a sufficient basis for the Tribunal's decision to be overturned. The court emphasised the importance of adhering to the statutory framework governing protection visas and highlighted that the Tribunal's decision was supported by substantial evidence. The applicant's previous application for judicial review, which was also dismissed, further underscored the robustness of the Tribunal's decision. As a result, the court upheld the delegate's decision and dismissed the applicant's application for judicial review.

The final orders of the court were that the application for judicial review was dismissed, and the applicant was directed to pay the respondent's costs and disbursements of and incidental to the application. This decision reinforces the principle that judicial review is a stringent process and that decisions of the Tribunal are not lightly overturned.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The affidavit of Ms Alexander and the written submissions of Mr Kennett provide a convenient summary of the litigation history of the applicant, which I have adopted and reproduce as follows:a)On 31 December 1996, the applicant in these proceedings lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”).b)On 9 April 1997, a delegate of the respondent refused to grant the applicant a protection visa.c)The applicant applied for review of that decision by the Tribunal on 2 May 1997. He advanced his case on the merits, lodging a detailed written statement and attending a hearing.d)The applicant subsequently sought review of the delegate’s decision by the Tribunal and on 30 November 1998 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.e)Some time thereafter, the applicant became a represented party in the Muin and Lie class action in the High Court. Following the determination of those proceedings, he made an individual application for judicial review of the Tribunal’s decision, which was remitted to the Federal Court and dismissed by Emmett J in Applicant S1874 of 2003 v Refugee Review Tribunal [2003] FCA 1617 on 4 December 2003. There was no appearance for the applicant before Emmett J. (Affidavit of Ms Alexander paragraphs 5-6 and annexure E, p.67).f)On 6 August 2004, an application under s.39B of the Judiciary Act 1903 (Cth) was filed by the applicant in this Court seeking review of the decision of the Tribunal dated 30 November 1998.g)In those proceedings the applicant was represented by counsel (Affidavit of Ms Alexander, annexure E, p.65). He contended, in various ways, that the Tribunal had erred by misapplying the test of refugee status found in s.36(2) of the Act: SZEDD v Minister for Immigration [2005] FMCA 112 at [8], [20]-[24] (“SZEDD”).h)On 1 February 2005, Smith FM dismissed the application with costs: SZEDD.i)On 31 May 2005, the applicant lodged a further application for a protection visa with the Department, the subject matter of these proceedings.j)On 14 June 2005, a delegate of the respondent wrote to the applicant advising him that his request for the exercise of the Minister’s power under s.48B of the Act did not meet the Minister’s “Guidelines for purported further applications for a Protection visa subject to s.48A and request for Ministerial Intervention under s.48B” and accordingly he could not apply again for a protection visa.k)On 8 July 2005, the applicant filed an application under s.39B of the Judiciary Act in this Court seeking review of the delegate’s decision dated 14 June 2005. The Tribunal decision of 30 November 1998 contains the following background information in respect to the applicant. The Tribunal decision is relied upon only to provide background information regarding the applicant that is not readily available from alternative sources. The applicant provided the Department with the following information in respect of his background in his original visa application. He claimed that he is a citizen of Bangladesh and arrived in Australia on 23 November 1996. The applicant was born in Munshiganj, Bangladesh in 1971. Since he completed his schooling in 1989, he was employed in various shops as a salesman. The applicant lived in Munshiganj until 1991 and then in India from 1991 to November 1996. He travelled to Australia in November 1996 on an Indian passport, which he claimed was false. The applicant stated that he fled to India in October 1991 to escape persecution and that he had returned to Bangladesh on several occasions since that time for short visits to see his family (Affidavit of Ms Alexander, p.39).