SZHMO v Minister for Immigration - [2006] FMCA 728

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHMO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 728

MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – Refugee Review Tribunal decision previously reviewed by the Federal Court in proceedings governed by s.476 of the Migration Act 1958 (Cth) as it stood before the “privative clause” changes of October 2001.

Federal Magistrates Court Rules 2001 (Cth), r.13.10
Federal Magistrates Court Act 1999 (Cth), ss.14, 15
Judiciary Act 1903 (Cth), ss.39B, 75
Migration Act 1958 (Cth), ss.91X, 476, 477A, 483A
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicants M16 of 2004 v Minister for Immigration [2005] FCA 1641

Applicant S635 of 2003 v Minister for Immigration [2005] FCAFC 65

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BC v Minister for Immigration [2001] FCA 1669
BC v Minister for Immigration [2002] FCAFC 221
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5
Gamaethige v Minister for Immigration [2001] FCA 565
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313

Minister for Immigration v Yusuf (2001) CLR 323

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 176 ALR 219

Re Minister for Immigration; Ex Parte Eshetu (1999) 197 CLR 611
Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30
Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SAAP v Minister for Immigration [2005] HCA 24
Wong v Minister for Immigration (2004) 146 FCR 10

Applicant:

SZHMO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3194 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

28 April 2006

Delivered at:

Sydney

Delivered on:

31 July 2006

REPRESENTATION

Counsel for the Applicant:

Mr S Aspinall

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
That the application filed on 2 November 2005 be dismissed pursuant to r.13.10(b) and/or r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) on the grounds that the proceedings are vexatious and/or an abuse of process.
Further, or in the alternative, an order that the applicant is barred by res judicata and/or is estopped from bringing these proceedings.
That the application filed on 2 November 2005 be dismissed.
That no further application for review of the decision of the Refugee Review Tribunal handed down on 28 March 2000, reference N98/23595, or for review of the decision of the delegate of the first respondent dated 20 May 1998, or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to…

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 728
Decision Date: 31 July 2006

CaseChat Overview and Summary

Federal Court Rules 2011. In the Federal Court of Australia, the matter of SZHMO versus the Minister for Immigration was presented. The dispute arose from an application filed by SZHMO for a review of a decision made by the Refugee Review Tribunal. The Tribunal had determined that SZHMO was not a refugee, and consequently, did not qualify for a protection visa. The primary legal issues before the court were whether the Tribunal's decision was lawful, correct, and whether the application was made within the requisite time frame.

The court examined the procedural aspects of the application, determining if it adhered to the rules outlined in the Federal Court Rules 2011. Specifically, the court assessed whether the application was filed within the prescribed time limit as per r.13.10(b) and whether it satisfied the requirements of r.13.10(c). The court also considered whether the application was appropriately filed against the correct respondent, and if the name of the respondent should be amended to reflect the current ministerial title. The reasoning provided by the court highlighted discrepancies in the application process and the need for precise adherence to procedural rules to ensure the validity of judicial review applications.

The court concluded that the application was not filed within the necessary time frame and failed to comply with the procedural rules, resulting in its dismissal. Additionally, the court ruled that the application should be amended to reflect the current title of the respondent. Consequently, the court ordered that the application be dismissed and that the Refugee Review Tribunal be joined as the second respondent, with the ministerial title amended accordingly.

Orders

Orders of the court

The Refugee Review Tribunal is joined as the second respondent.

The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.

That the application filed on 2 November 2005 be dismissed pursuant to r.13.10(b) and/or r.13.10(c) of the

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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