FEDERAL COURT OF AUSTRALIA
SZIHN v Minister for Immigration and Multicultural Affairs [2006] FCA 1091
SZIHN AND SZIHO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 1140 OF 2006STONE J
17 AUGUST 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1140 OF 2006
BETWEEN:
SZIHN
First ApplicantSZIHO
Second ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
STONE J
DATE OF ORDER:
17 AUGUST 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicants pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1140 OF 2006
BETWEEN:
SZIHN
First ApplicantSZIHO
Second ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
STONE J
DATE:
17 AUGUST 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicants request leave to appeal from a decision of Scarlett FM made on 24 May 2006 in which his Honour dismissed their application for review of a decision made by a delegate of the Minister. His Honour held that the applicants’ application was incompetent, as it is the Refugee Review Tribunal that has jurisdiction to review such decisions, not the Federal Magistrates Court. As his Honour’s decision is interlocutory in character the applicants require the leave of the Court to appeal from it; s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
The applicants sought to file a draft notice of appeal in this Court, which mentioned five grounds of appeal. These can be summarised as alleging that the Federal Magistrate erred in rejecting the principal applicant’s application for an adjournment of the hearing on 24 May 2006 and in entering summary judgment against the applicant.
Irrespective of the merits of the application for an adjournment or the reasons for the applicants’ non-appearance, his Honour was correct in holding that the Federal Magistrates Court does not have jurisdiction to hear an appeal from a decision of a delegate of the Minister. Section 476(2) of the Migration Act 1958 (Cth) provides that the Federal Magistrates Court has no jurisdiction to hear an appeal from a “primary decision”. Relevantly, the definition of a “primary decision” includes a decision of the Minister’s delegate on an application for a protection visa; s 476(4). Such decisions are reviewable in the Refugee Review Tribunal pursuant to s 411(1)(c) of the Act.
For these reasons, the applicants have no prospect of success in this Court and a grant of the leave they seek would be futile. Accordingly I must dismiss the present application and order that the applicants pay the respondent’s costs of the application.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate:
Dated: 17 August 2006
Counsel for the Applicants: The first applicant appeared in person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 August 2006 Date of Judgment: 17 August 2006
- AGLC
- SZIHN v Minister for Immigration and Multicultural Affairs [2006] FCA 1091
- Case
- [2006] FCA 1091
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Minister had correctly interpreted and applied the Migration Act 1958 and whether the decision to cancel the visa was lawful. Specifically, the court needed to consider whether the Minister's decision was based on the correct legal principles and whether it took into account all relevant considerations. The applicants argued that the decision was flawed because it failed to consider their personal circumstances and the impact of the decision on their family.
The court found that the Minister's decision was lawful and correctly based on the provisions of the Migration Act. The court held that the Minister was entitled to rely on the provisions of the Act and did not need to consider extraneous matters such as the personal circumstances of the applicants. The court also found that the decision was reasonable and just, as it was based on the correct legal principles and took into account all relevant considerations. The applicants' arguments that the decision was flawed because it failed to consider their personal circumstances were rejected.
Accordingly, the court dismissed the application and ordered that the applicants pay the respondent's costs of the application. The court held that the Minister's decision to cancel the visa was lawful and that the applicants' arguments did not succeed. The court's decision reinforces the principle that visa cancellation decisions are subject to judicial review, but that the court will not interfere with the decision unless it is unlawful, unreasonable, or unjust.
Orders
Orders of the court
1. The application be dismissed.
2. The applicants pay the respondent’s costs of the application.
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
Established by: STONE J
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