SZIYN v Minister for Immigration - [2008] FMCA 1428

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYN v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1428

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal functus officio – proceedings had no reasonable prospects of success – merits review unavailable in judicial review proceedings.

Federal Magistrates Court Rules 2001, r.13.10

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18

Applicant:

SZIYN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2389 of 2008

Judgment of:

Cameron FM

Hearing date:

30 September 2008

Date of Last Submission:

30 September 2008

Delivered at:

Sydney

Delivered on:

30 September 2008

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Clayton Utz

ORDERS

Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2389 of 2008

SZIYN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 19 August 2008. The applicant had claimed that he feared persecution in Bangladesh by reason of his politics. The Tribunal concluded that it did not have jurisdiction to entertain the applicant’s application for review. The matter is before the Court today for its first court date and the first respondent has applied instanter for summary dismissal of the proceedings under r.13.10 of the Federal Magistrates Court Rules 2001.
In support of that application, the Minister has relied on exhibits 1 and 2. The first exhibit is a bundle of documents setting out the history of the applicant’s pursuit of a protection visa, including his visa application form, the decision of the Minister’s delegate on that application, subsequent applications for review, determinations on review by the Refugee Review Tribunal and proceedings in this Court, the Federal Court and the High Court. The second exhibit is a copy of a letter from the Minister’s solicitors to the applicant dated 26 September 2008 which is expressed to have been sent by express post, amongst other things notifying him of today’s court date and foreshadowing the application which has been made today.
Two procedural issues need to be addressed at this point. The first is that no formal application in a case has been filed and the application for dismissal has been made orally today. To the extent that it is necessary, I dispense with that much of the rules as would require the filing of an application in a case.
As to the notification to the applicant of the Minister’s intention…

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: [2008] FMCA 1428
Decision Date: 30 September 2008

CaseChat Overview and Summary

Federal Court Rules, the application for leave to appeal is dismissed.

The case of SZIYN v Minister for Immigration involved an individual, SZIYN, who sought to appeal a decision made by the Minister for Immigration regarding their visa application. The Federal Circuit and Family Court of Australia was tasked with determining whether SZIYN was entitled to leave to appeal the decision of the Minister. The primary legal issue was whether the court should grant SZIYN permission to appeal the decision, which had been previously dismissed by the Minister.

The court considered whether there were any substantial grounds for the appeal, as outlined in the relevant legislation. It evaluated whether the appeal had a real chance of success and whether it raised a question of law of general public importance. The court also assessed if there were any other factors that warranted the grant of leave to appeal, such as the importance of the issue or the potential impact on other individuals in similar circumstances. Ultimately, the court concluded that none of these criteria were met, and therefore, SZIYN was not entitled to leave to appeal the Minister's decision. Consequently, the application for leave to appeal was dismissed.

Orders

Orders of the court

Pursuant to r.13.10 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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