SZHDH v Minister for Immigration - [2005] FMCA 1756

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHDH v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1756

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of India claiming persecution for reason of political belief – where no hearing held – where Applicant was asked to provide additional information but did not do so – delay – where Applicant filed application for review after 18 months – natural justice – bias – procedural fairness.

PRACTICE & PROCEDURE – Notice of Objection to Competency – privative clause decision – where application filed more than 28 days after the Applicant was notified of the decision – where decision handed down on 4 March 2004 but application for review filed at Court on 19 September 2005 – Notice of Motion – summary dismissal – abuse of process – res judicata – no reasonable cause of action.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424C, 425, 474, 477(1A)

SZDEK v Minister for Immigration [2004] FMCA 854
SZEDK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 577
Colgate Palmolive Pty Ltd v. Cussons Pty Ltd (1993) 46 FCR 225

Applicant:

SZHDH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 2621 of 2005

Delivered on:

17 November 2005

Delivered at:

Sydney

Hearing date:

17 November 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In person

Solicitor for the Respondent:

Mr Carter

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Leave granted to join Refugee Review Tribunal as a party to the proceedings.
That the application is not competent.
That the application is summarily dismissed as the claim for relief is:
(a)vexatious;
(b)an abuse of the process of the Court; and
(c)is a claim that does not disclose a reasonable cause of action.
No application by the Applicant for review of the decision of the Refugee Review Tribunal handed down on 4 March 2002 may be accepted for filing in any Registry of the Court without leave of the Court.
UNTIL FURTHER ORDER the Applicant is restrained from filing or attempting to file any application for review of the decision of the Refugee Review Tribunal handed down on 4 March 2002 without leave of the Court.
The Applicant is to pay the First Respondent’s costs on an indemnity basis in the sum of $4,000.00 together with Court costs in the sum of $288.00.
The Applicant is warned that if he seeks to institute any further proceedings in this Court seeking review of the said decision of the Refugee Review Tribunal without reasonable grounds he is liable to be declared a vexatious litigant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2621 of 2005

SZHDH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS…

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 1756
Decision Date: 17 November 2005

CaseChat Overview and Summary

The case of SZHDH v Minister for Immigration involved the Applicant, SZHDH, seeking judicial review of a decision made by the Refugee Review Tribunal. The Applicant's application was dismissed by the Court as being vexatious, an abuse of process, and lacking a reasonable cause of action. The Minister for Immigration was the primary respondent in the case, and the Refugee Review Tribunal was later joined as a party to the proceedings.

The court was required to determine whether the Applicant's application was competent and if it disclosed a reasonable cause of action. Additionally, the court had to consider whether the application was vexatious or an abuse of the Court's process. The court also needed to decide if the Applicant was restrained from filing further applications for review without leave of the Court.

The court found that the Applicant's application was vexatious, an abuse of process, and did not disclose a reasonable cause of action. The court noted that the Applicant had a history of making similar applications, and that the current application was without merit. The court also found that the application was an abuse of process as it sought to relitigate issues that had already been decided by the Refugee Review Tribunal. The court concluded that the Applicant's claims were frivolous and that the application should be dismissed. The court further restrained the Applicant from filing any further applications for review without leave of the Court.

The court made several orders, including granting leave to join the Refugee Review Tribunal as a party to the proceedings, dismissing the application as vexatious and an abuse of process, and restraining the Applicant from filing further applications for review without leave of the Court. The court also ordered the Applicant to pay the costs of the proceedings on an indemnity basis. The court warned the Applicant that if he sought to institute any further proceedings in the Court without reasonable grounds, he would be liable to be declared a vexatious litigant.

Orders

Orders of the court

Leave granted to join Refugee Review Tribunal as a party to the proceedings.

That the application is not competent.

That the application is summarily dismissed as the claim for relief is:

(a) vexatious;

(b) an abuse of the process of the Court; and

No application by the Applicant for review of the decision of the Refugee Review Tribunal handed down on 4 March 2002 may be accepted for filing in any Registry of the Court without leave of the Court.

UNTIL FURTHER ORDER the Applicant is restrained from filing or attempting to file any application for review of the decision of the Refugee Review Tribunal handed down on 4 March 2002 without leave of the Court.

The Applicant is to pay the First Respondent’s costs on an indemnity basis in the sum of $4,000.00 together with Court costs in the sum of $288.00.

The Applicant is warned that if he seeks to institute any further proceedings in this Court seeking review of the said decision of the Refugee Review Tribunal without reasonable grounds he is liable to be declared a vexatious litigant.

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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