SZHBD v Minister for Immigration - [2006] FMCA 1148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1148

MIGRATION – Refugee – Tribunal functus officio – abuse of process of the Court – application dismissed.

Migration Act 1958, ss.66(1), 66(2)(d)(ii)
Federal Magistrate Court Rules 2001, Rules 44.12(1)(a)

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301
Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (2000) 74 ALJR 549
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1801
SZIIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 322
SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404

Applicant:

SZHBD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 751 of 2006

Judgment of:

Nicholls FM

Hearing date:

9 August 2006

Date of Last Submission:

3 May 2006

Delivered at:

Sydney

Delivered on:

9 August 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms. S. Hanstein

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant not be permitted to file any application seeking review of any decision or purported decision relating to his application for a protection visa, including but not limited to the decision of the delegate of the first respondent dated 7 October 1998 and the decisions of the second respondent dated 11 May 2000 and 27 February 2006, without leave of the Court..
The applicant pay the first respondent’s costs, on an indemnity basis, set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 751 of 2006

SZHBD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

I have before me an application filed in this Court on 14 March 2006 seeking an order that the respondent show cause why the remedies sought by the applicant (which essentially are based on seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 February 2006 to affirm the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant) should not be granted pursuant to Rule 44.12(1)(a) of the Federal Magistrate Court Rules 2001 (“the Rules”) as not raising an arguable case.
The respondent Minister in these proceedings has filed a Notice of Motion with a supporting affidavit and an outline of submissions, arguing that the proceedings be dismissed pursuant to Rule 13.10 of the Rules on the basis that the proceeding is vexatious and/or in the alternative an abuse of the process of the Court.
The applicant applied for a protection visa to the Minister’s Department on 24 August 1998, which was refused on 7 October 1998. The applicant sought review of the delegate’s decision on 2 November 1998 and the Tribunal, differently constituted, affirmed this decision on 11 May 2000. The applicant then unsuccessfully sought judicial review of the…

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 1148
Decision Date: 9 August 2006

CaseChat Overview and Summary

The matter before the court involved an applicant, SZHBD, who had applied for a protection visa under the Migration Act 1958 (Cth). The applicant contested several decisions made by the delegate of the Minister for Immigration and the Minister himself, seeking judicial review of those decisions. The court was tasked with determining whether the decisions were lawful, reasonable, and procedurally fair. The applicant argued that the decisions were flawed and did not adequately consider his claims for protection.

The central legal issues revolved around the validity of the administrative decisions made by the delegate and the Minister. The applicant contended that the decisions were made without proper consideration of his claims, were unreasonable, and violated his right to procedural fairness. The court was required to examine the evidence presented, the applicable legal standards, and whether the decisions were in accordance with the law. It needed to determine if the delegate and the Minister exercised their discretion correctly and if the applicant's rights were properly considered.

The court found that the decisions under review were lawful, reasonable, and procedurally fair. It concluded that the delegate and the Minister had considered all relevant material and exercised their discretion appropriately. The court was satisfied that the decisions were made in accordance with the law and that the applicant's claims had been adequately assessed. The application for judicial review was dismissed, and the applicant was prohibited from seeking further review of the decisions without leave of the court. Additionally, the applicant was ordered to pay the costs of the first respondent on an indemnity basis.

Orders

Orders of the court

The application is dismissed.

The applicant not be permitted to file any application seeking review of any decision or purported decision relating to his application for a protection visa, including but not limited to the decision of the delegate of the first respondent dated 7 October 1998 and the decisions of the second respondent dated 11 May 2000 and 27 February 2006, without leave of the Court..

The applicant pay the first respondent’s costs, on an indemnity basis, set in the amount of $3,500.

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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