SZIOF v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1512
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.48B, 65, 411, 412, 414, 424A
Migration Regulations 1994

Jayasinghe v Minister for Immigration (1997) 76 FCR 301
Minister for Immigration v Thiyagarajah (2000) 199 CLR 343
SZAQW v Minister for Immigration [2006] FCA 1332
SZASP v Minister for Immigration [2007] FCA 771
SZCKB v Minister for Immigration & Anor [2006] FMCA 804
SZBRB v Minister for Immigration & Anor [2007] FMCA 1093
SZBRB v Minister for Immigration [2007] FCA 1452
SZBCE v Minister for Immigration & Anor [2006] FMCA 1897
SZIHQ v Minister for Immigration & Anor  [2006] FMCA 496
SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164
SZIIV v Minister for Immigration & Anor [2006] FMCA 322

SZIOF v Minister for Immigration & Anor [2007] FMCA 1321
SZIOF v Minister for Immigration [2007] FCA 1858

SZIOF v Minister for Immigration & Anor [2008] HCASL 394

Applicant: SZIOF
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2467 of 2008
Judgment of: Driver FM
Hearing date: 6 November 2008
Delivered at: Sydney
Delivered on: 6 November 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms J Dinihan
Clayton Utz

INTERLOCUTORY ORDERS

  1. There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).

  2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

  3. No further application by this applicant to review any migration decision relating to her protection visa application lodged on


    23 September 2005

    be accepted for filing in this Court, except by leave of a Federal Magistrate.

  4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2467 of 2008

SZIOF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

  1. I have before me a show cause application filed on 22 September 2008.  The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 25 August 2008.  The Tribunal found it had no jurisdiction in the matter because the decision of the delegate in the matter had previously been reviewed by the Tribunal.

  2. The application was supported by a short affidavit filed with it.  Paragraph 1 of the affidavit asserts a failure of procedural fairness.


    I received that paragraph as a submission.  Paragraph 2 introduces the decision of the Tribunal which I received as evidence.

  3. The Minister filed a response on 17 October 2008.  That response seeks summary dismissal of the application. The response is supported by the affidavit of Jaimee Dinihan filed on 14…

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Details
Case
[2008] FMCA 1512
Decision Date

CaseChat Overview and Summary

The case of SZIOF v Minister for Immigration and Citizenship involved the applicant, SZIOF, seeking review of a decision made by the Refugee Review Tribunal (the Tribunal). The Tribunal had found it lacked jurisdiction to review the decision of a delegate, who had refused to grant SZIOF a protection visa. This case was heard by the Federal Magistrates Court, specifically by Driver FM. The central issue in this case was whether the Tribunal's decision was procedurally unfair and whether the Tribunal had the jurisdiction to review the delegate's decision for the third time.

The court examined the statutory framework governing the Tribunal's jurisdiction and found that the Tribunal correctly determined it lacked jurisdiction to review the delegate's decision for a third time. The court emphasised that once the Tribunal had exercised its jurisdiction to review a decision, it could not do so again. This principle has been consistently upheld in numerous cases. The court found that SZIOF's repeated applications for review constituted an abuse of the Tribunal's and the court's processes.

As a result, the court dismissed SZIOF's application for judicial review, stating that no arguable case for the relief claimed had been disclosed. The court also imposed an order preventing SZIOF from filing any further applications in relation to her protection visa without the leave of a Federal Magistrate. Additionally, the court ordered SZIOF to pay the Minister's costs, fixed at $1,600, considering the abuse of process.

The Federal Magistrates Court's decision underscores the importance of adhering to jurisdictional limits and the consequences of abusing the judicial process. It reinforces the principle that the Tribunal cannot review the same decision multiple times, and it highlights the court's power to prevent repetitive and abusive litigation.

Orders

Orders of the court

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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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