SZJSV v Minister for Immigration - [2008] FMCA 561

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSV & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 561

MIGRATION – Refugee Review Tribunal – Practice & Procedure – whether the Refugee Review Tribunal had jurisdiction to consider applicants’ review application – prior judicial proceedings dismissed – whether proceeding is an abuse of process – whether proceeding has no arguable prospect of success.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.414; 474

SZJSV & Anor v Minister for Immigration & Anor [2007] FMCA 355
SZJSV & Anor v Minister for Immigration & Anor [2007] FCA 913
SZJSV & Anor v Minister for Immigration & Anor [2008] HCA TRANS 029
Jayasinghe v Minister for Immigration and Ethnic Affairs (2001) 109 FCR 18
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
SZCFB v Minister for Immigration and Citizenship [2008] FCA 527

First Applicant:

SZJSV

Second Applicant:

SZJSW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 752 of 2008

Judgment of:

Emmett FM

Hearing date:

1 May 2008

Date of last submission:

1 May 2008

Delivered at:

Sydney

Delivered on:

1 May 2008

REPRESENTATION

Applicant appeared in person with the assistance of a Gujarati interpreter

Solicitors for the Respondent:

Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 752 of 2008

SZJSV

First Applicant

SZJSW

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the First Respondent that the applicants’ proceeding for judicial review of a decision of the Refugee Review Tribunal dated 27 February 2008 be dismissed under Rule 44.05 of the Federal Magistrates Court Rules 2001 (Cth), on the basis that the applicants’ proceeding is an abuse of process or has no reasonable prospects of success.
The First Respondent read the affidavit of Nicola Johnson, sworn 8 April 2008. Ms Johnson’s affidavit annexes a chronology of the applicants’ litigation in respect of their application for protection visas.
Relevantly, the applicants’ arrived in Australia on 3 May 2006.
On 26 May 2006, the applicants’ lodged applications for protection visas which were refused by a delegate of the First Respondent (“the Delegate”) on 21 July 2006.
On 12 August 2006 the applicants lodged an application for review of the Delegate’s decision with the Refugee Review Tribunal. On 7 November 2006 the Refugee Review Tribunal, previously constituted, (“the First Refugee Review Tribunal”) affirmed the Delegate’s decision.
On 22 November 2006, the applicants filed an application for judicial review of the First Refugee Review Tribunal decision in the Federal Magistrates Court. On 7 March 2007, Scarlett FM dismissed the application on the basis that the First Refugee Review Tribunal’s decision was not affected by jurisdictional error and was therefore a privative clause decision pursuant to s.474 of the Migration Act 1958 (Cth) (“the Act”) (SZJSV & Anor v Minister for Immigration & Anor [2007] FMCA 355).

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 561
Decision Date: 1 May 2008

CaseChat Overview and Summary

This case involves an application by the Minister for Immigration and Citizenship to dismiss an application for judicial review filed by SZJSV and SZJSW (the applicants) against the Refugee Review Tribunal. The applicants sought review of a decision by the Refugee Review Tribunal dated 27 February 2008, which dismissed their second application for review of the Minister's decision to refuse their applications for protection visas. The Minister argued that the applicants' proceeding should be dismissed on the grounds that it was an abuse of process or had no reasonable prospects of success.

The court was required to determine whether the Refugee Review Tribunal had jurisdiction to consider the applicants' second review application and whether the proceeding before the Federal Magistrates Court had any arguable prospect of success. The applicants argued that the Tribunal denied them procedural fairness by not inviting them to attend a hearing and by not considering certain country information. The Minister argued that the Tribunal had no jurisdiction to consider the second review application because its earlier decision had affirmed the Minister's decision and the matter was now functus officio.

The court held that the Refugee Review Tribunal did not have jurisdiction to consider the applicants' second review application, as its earlier decision had already affirmed the Minister's decision and the matter was now functus officio. The court also held that the applicants' proceeding before the Federal Magistrates Court had no arguable prospect of success because the jurisdictional issue had already been determined by the Tribunal's earlier decision. Furthermore, the court accepted the Minister's submission that the applicants' litigation history and the unmeritorious nature of the application to the Tribunal and to the Federal Magistrates Court demonstrated that the proceeding was an abuse of process.

The court dismissed the applicants' proceeding with costs. The court found that the applicants' proceeding before the Federal Magistrates Court was an abuse of process and had no reasonable prospects of success. The court also found that the jurisdictional issue had already been determined by the Tribunal's earlier decision and that the applicants' proceeding before the Federal Magistrates Court did not raise any new issues. Accordingly, the proceeding before the Federal Magistrates Court was dismissed with costs.

Orders