SZGUE v Minister for Immigration - [2006] FMCA 1346

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1346

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal complied with s.424A(1) of the Migration Act 1958 (Cth) – whether litigation history an abuse of process of Court by Applicant – whether order that the Applicant not be allowed to file further proceedings without leave of the Court should be made.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 424A(1); 424A(3)(a); 424A(3)(b); 474; 476(1); 476(6)(a); 477A(1); pt.8 div.2

Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 242
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Ling v Commonwealth of Australia (1996) 139 ALR 159
SZBXA v Minister for Immigration [2004] FMCA 96

Applicant:

SZGUE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1895 of 2005

Judgment of:

Emmett FM

Hearing date:

1 September 2006

Date of last submission:

1 September 2006

Delivered at:

Sydney

Delivered on:

13 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr H. Altan

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Ms H. Blackman, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1895 of 2005

SZGUE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 January 2003.
The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 19 April 2001. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The applicant is a 49 year old male who claims to be a citizen of Bangladesh and of Bangladesh ethnicity and Muslim faith (“the Applicant”).
The Applicant has a wife, son and daughter who remain in Bangladesh.
The Applicant arrived in Australia on 11 September 2000, having departed legally from Dhaka Airport on a passport issued in his own name and a visitor’s visa issued on 14 August 2000.
On 25 September 2000, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 19 April 2001, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
In his protection visa application, the Applicant claimed that he feared…

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 1346
Decision Date: 13 September 2006

CaseChat Overview and Summary

SZGUE brought an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse the Applicant’s application for a protection visa. The Applicant claimed that he was a citizen of Bangladesh and had a fear of persecution by Bangladesh police and law enforcement authorities due to his involvement with the Bangladesh Nationalist Party. The Tribunal affirmed the decision of the delegate to refuse the Applicant’s application for a protection visa. The Applicant sought judicial review of the Tribunal’s decision. The Minister for Immigration and Multicultural and Indigenous Affairs opposed the application on the basis that it was an abuse of the Court’s process. The Minister sought an order that the Applicant not be allowed to file any further proceeding in respect of the Tribunal’s decision without leave of the Court.

The legal issues before the Court were whether the Tribunal complied with s.424A of the Migration Act 1958 (Cth) and whether the Applicant’s application to this Court was an abuse of the Court’s process. The Court found that the Tribunal had not erred in its compliance with s.424A and that the Applicant’s application was an abuse of the Court’s process. The Applicant had already pursued all his rights of appeal in relation to judicial review of the Tribunal’s decision and the filing of a further application was unjustifiably vexatious and oppressive and was likely to bring the administration of justice into disrepute.

The Court dismissed the Applicant’s application for judicial review and ordered that the Applicant not be permitted to file any further application seeking review of the decision of the Tribunal without leave of the Court. The Court further ordered that the proceeding before the Court was dismissed with costs.

Orders