SZHFL v Minister for Immigration - [2006] FMCA 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 295

MIGRATION – Protection visa application – judicial review of the Tribunal’s decision – decision upheld by Federal Magistrates Court, Federal Court and High Court – new application dismissed as an abuse of process.

Federal Magistrates Court Act 1999 (Cth), ss.14, 15
Federal Magistrates Court Rules 2001, r.13.10
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.66, 91X

Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 919
Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
Bal v Minister for Immigration & Multicultural Affairs [2001] FCA 1191
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FMCA 340
NALE v Minister for Immigration& Multicultural & Indigenous Affairs
[2003] FMCA 366
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 119

SZBJM v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404
S442 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1240
Walton v Gardiner (1993) 177 CLR 378

Applicant:

SZHFL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG2754 of 2005

Delivered on:

2 March 2006

Delivered at:

Sydney

Hearing date:

2 March 2006

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the assistance of a Bengali interpreter.

Advocate for the Respondents:

Mr K Sinnadurai

Solicitors for the Respondents:

Clayton Utz

ORDERS

The respondent’s application filed on 1 November 2005 is upheld.
The application for judicial review of the delegate’s decision filed on 28 September 2005 is dismissed pursuant to r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“Rules”) on the grounds that the proceedings are an abuse of process.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Mr L Hardy File No: N99/28471) made on 11 December 2001 and handed down on

9 January 2002, or the decision of the delegate of the Minister for Immigration (File No: N99/001095) handed down on 5 May 1999, is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2754 of 2005

SZHFL

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

By an application filed on 1 November 2005, the respondent seeks an order that the applicant’s application be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Court Act 1999 (Cth) on the following grounds:
1.An order that the application filed on 16 June 2005 be dismissed pursuant to r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“Rules”) on 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 295
Decision Date: 2 March 2006

CaseChat Overview and Summary

In the matter of SZHFL v Minister for Immigration, the applicant, Mr Sinnadurai, sought judicial review of the Minister's decision to refuse him a protection visa. The application was dismissed by the court on the grounds that it was an abuse of process. The case had already been considered and dismissed in the Federal Magistrates Court, the Federal Court, and the High Court on multiple occasions.

The legal issues the court had to consider included whether the applicant's repeated attempts to seek judicial review constituted an abuse of process, and whether the decision of the Refugee Review Tribunal (RRT) that affirmed the Minister's decision should be considered a de novo review that cured any jurisdictional error in the original decision. The court found that the applicant's conduct was inconsistent with the application for relief and that the application disclosed no reasonable cause of action.

The court held that the structure of the Migration Act meant that the Minister and her delegates were functus officio to make decisions by way of reconsideration or further exercise of the power to grant or refuse visas, in circumstances where a merits review had been sought and obtained in relation to a protection visa application. The court also found that the applicant's claim that the Minister failed to notify him of the delegate's decision was without merit, as the failure to give notification did not affect the validity of the decision and the applicant had applied within time to the RRT.

The court dismissed the respondent's application and upheld the application for judicial review of the delegate's decision. However, the application for judicial review of the delegate's decision was dismissed pursuant to r.13.10(c) of the Federal Court Rules.

Orders

Orders of the court

The respondent’s application filed on 1 November 2005 is upheld.

The application for judicial review of the delegate’s decision filed on 28 September 2005 is dismissed pursuant to r.13.10(c) of the

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

Mr Sinnadurai prepared written submissions in which I adopt paragraphs 1 to 7 for the purposes of this judgment:1.In light of the prior proceedings commenced in the Federal Magistrates Court of Australia (on two occasions), the Federal Court of Australia (on three occasions) and the High Court of Australia (on three occasions) these proceedings are self evidently an abuse of process and warrant dismissal. 2.The Respondent submits that the Applicant's pursuit of merits review of the Delegate's Decision, and his subsequent and repeated pursuit of judicial review in relation to the validity of the RRT Decision, which affirmed the Delegate's Decision, is clearly "conduct of the party inconsistent with the application for relief".3.The Respondent further submits that the application discloses no reasonable cause of action because, even if there were any jurisdictional error affecting the Delegate's Decision (which is not admitted), it was “cured” by the decision of the RRT. As a general principle, the Court should not hear a challenge to a primary decision where there is a de novo review decision, because the review decision “cured” the primary decision. Nor should a court give relief in respect of a delegate's decision when a person affected by the decision has had the opportunity to seek a de novo merits review and that opportunity has been taken.4.The structure of the Act leaves the Minister and her delegates functus officio to make decisions by way of reconsideration, or further exercise of the power to grant or refuse visas, under section 65 of the Act, in circumstances where a merits review had been sought and obtained under Part 7 of the Act in relation to a protection visa application. The futility of litigating the Delegate's Decision is such that the application is an abuse of process.Breach of the Notification Procedures in respect of the Delegate's Decision - Breach of section 66 of the Migration Act5.To the extent the Applicant asserts that there was no notification of the Delegate's Decision:(a)section 66(4) of the Migration Act ("Act") provides that failure to give notification of a decision does not affect the validity of the decision. (b)it is not contested and it is patently clear that the Applicant did in fact apply within time to the RRT.Accordingly, there is not merit to the Applicant's ground of review asserting that the failure to notify him of the Delegate's Decision invalidated that decision. On 15 February 2006, the applicant filed a document entitled “Outline of Submissions” with an attachment called “Written Legal Submissions”. The Outline of Submissions is a restatement of the substantial issues contained in the applicant’s claim, while the Written Legal Submissions is a further attempt to restate the applicant’s claim. It is broken up into sub-headings and a request for order that may be an attempt to file an amended application. However, the contents is more focussed on the merits review and does not raise grounds of jurisdictional error.