SZHBE v Minister for Immigration - [2005] FMCA 1792

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBE v MINISTER FOR IMMIGRATION

[2005] FMCA 1792

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome that RRT decision is a privative clause decision – application for judicial review dismissed.

Migration Act 1958 (Cth), ss.91X, s.426A(1), 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B

Applicant:

SZHBE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG2439 of 2005

Delivered on:

24 November 2005

Delivered at:

Sydney

Hearing date:

24 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an Urdu interpreter.

Advocate for the Respondent:

Ms J Pownall

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The respondent’s Notice of Motion filed on 28 September 2005 is upheld.
The respondent’s Notice of Objection to Competency filed on

20 September 2005 is upheld.
The application for judicial review filed on 31 August 2005 is dismissed as incompetent.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Ms Roslyn Smidt File No: N02/44264) made on 15 August 2003 and handed down on

11 September 2003 or the decision of the Delegate of the Minister for Immigration handed down on 22 August 2002 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2439 of 2005

SZHBE

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

By a Notice of Motion filed on 28 September 2005, the first respondent moved the Court for orders that these proceedings be dismissed as incompetent on the ground that the application relates to a privative clause decision that has not…

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 1792
Decision Date: 24 November 2005

CaseChat Overview and Summary

The applicant, SZHBE, sought judicial review of decisions made by the Refugee Review Tribunal and the Delegate of the Minister for Immigration, both of which refused the applicant's application for a protection visa. The respondent, the Minister for Immigration, filed a Notice of Motion and a Notice of Objection to Competency in response, arguing that the application for review was incompetent. The matter was heard in the Federal Court of Australia.

The primary legal issue was whether the application for judicial review was incompetent due to procedural flaws and whether the court should grant leave to the applicant to file the review. The court also needed to determine whether the applicant's claims were legally tenable and if there were any grounds for the court to intervene in the decisions made by the tribunal and the delegate.

The Federal Court found that the application for judicial review was indeed incompetent due to procedural errors and the lack of legal merit in the applicant's claims. The court held that the applicant had not complied with the necessary procedural requirements and that the application did not present a valid basis for judicial intervention. Consequently, the court dismissed the application for judicial review and upheld the objections raised by the respondent. Additionally, the court ordered that no further applications from the applicant regarding the same decisions would be accepted without the leave of the court. The applicant was also directed to pay the respondent's costs of the proceedings.

In light of the findings, the court made several orders. The respondent's Notice of Motion and Notice of Objection to Competency were upheld. The application for judicial review was dismissed as incompetent. The court also prohibited any further applications by the applicant concerning the decisions of the Refugee Review Tribunal and the delegate without prior leave. Finally, the applicant was ordered to pay the respondent's costs of the application, fixed at $3,100.00.

Orders

Orders of the court

The respondent’s Notice of Motion filed on 28 September 2005 is upheld.

The respondent’s Notice of Objection to Competency filed on

20 September 2005 is upheld.

The application for judicial review filed on 31 August 2005 is dismissed as incompetent.

The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Ms Roslyn Smidt File No: N02/44264) made on 15 August 2003 and handed down on

11 September 2003 or the decision of the Delegate of the Minister for Immigration handed down on 22 August 2002 is to be accepted for filing without leave of this Court.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,100.00.

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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