MIGRATION – Review of Refugee Review Tribunal and delegate’s decision – refusal of a protection visa, decision previously reviewed by RRT and the courts – on second application, RRT finding that it had no jurisdiction – no jurisdictional error – application dismissed summarily.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $250.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SYG469 of 2006
SZIIV
Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 23 January 2006 and the applicant asserts notification of it on 25 January 2006. The show cause application was filed on 14 February 2006. On that basis I find that the application was filed within time.
The application contains four grounds of review. They are, first, that the delegate and the RRT wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution. Secondly, that the delegate and the RRT applied the wrong test in relation to whether or not a Convention reason was an essential and significant reason for the persecution. Thirdly, that the delegate and the RRT had improperly dealt with the aspect of the applicant's claim relating to state tolerance and complicity of the political case filed by the applicant's previous spouse and, finally, that the delegate and the RRT failed to consider the reality of the chance of persecution by requiring the applicant to avoid persecution.
The matter came before me this morning on a first court date. It was immediately obvious that the application faced potentially insuperable difficulties. As I explained to the applicant, the Court no longer has any jurisdiction to review a primary decision. Relevantly, that is a decision of a delegate that is reviewable by a tribunal. Secondly, the grounds of review asserted in the application bear no relationship whatsoever to the decision of the RRT sought to be reviewed.
Bearing these factors in mind I ordered,…
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.
Continue reading SZIIV v MIMA
Sign in free to access the full text
Details
AGLC
SZIIV v MIMA [2006] FMCA 322
Case
[2006] FMCA 322
Decision Date
CaseChat Overview and Summary
The applicant, SZIIV, sought judicial review of a decision by the Refugee Review Tribunal (RRT) that it lacked jurisdiction to review a second application for a protection visa. The decision under review was that of the RRT, which had found that it could not entertain the applicant's second review application as it was both outside the statutory time limit and beyond the scope of its statutory mandate to review a delegate's decision more than once. The application was filed in the Federal Magistrates Court of Australia.
The central legal issue for the court was whether the RRT had jurisdiction to review the second application for a protection visa. The applicant argued that the RRT had erred in finding that it had no jurisdiction, and that the RRT had failed to properly consider the merits of the applicant's claims. The respondent argued that the RRT was correct in finding that it lacked jurisdiction, and that the application should be dismissed.
The court found that the RRT had correctly determined that it lacked jurisdiction to review the second application. The court held that the statutory time limit for a review application had expired, and that the RRT had no jurisdiction to review a delegate's decision more than once. The court further held that the applicant's grounds of review were irrelevant as the RRT had no jurisdiction to consider them.
The court dismissed the application and ordered that the applicant pay the respondent's costs of $250. The court held that the application was an abuse of process and that it was necessary to act promptly and firmly to deal with such applications. The court also noted that the only realistic option for the applicant was to seek ministerial intervention under the Migration Act.