SZLUE v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 385

MIGRATION – RRT decision – second application for judicial review – no arguable case – application dismissed at first court date.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), s.476

SZLUE v Minister for Immigration & Citizenship & Anor [2009] HCASL 41
SZLUE v Minister for Immigration & Citizenship [2008] FCA 1433
SZLUE v Minister for Immigration & Anor [2008] FMCA 779

Applicant:

SZLUE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 721 of 2009

Judgment of:

Smith FM

Hearing date:

21 April 2009

Delivered at:

Sydney

Delivered on:

21 April 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms B Anniwell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $650.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 721 of 2009

SZLUE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 26 March 2009 seeking judicial review under s.476 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal handed down on 29 November 2007. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
The validity of the Tribunal’s decision has already been upheld in previous litigation under the same jurisdiction. Orchiston FM dismissed an application on 13 June 2008 (SZLUE v Minister for Immigration & Anor [2008] FMCA 779). Her Honour considered the applicant’s arguments and other issues, and concluded that the Tribunal’s decision was not affected by jurisdictional error and was a privative clause decision.
Her Honour’s judgment was upheld by Reeves J on 18 September 2008 (see SZLUE v Minister for Immigration & Citizenship [2008] FCA 1433). His Honour found no error in Orchiston FM’s judgment, and also addressed other issues and found that the Tribunal did not commit any jurisdictional error.
An application for special leave to appeal to the High Court was refused by French CJ and Hayne J on 3 March 2009 (see SZLUE v Minister for Immigration & Citizenship & Anor [2009] HCASL 41). Their Honours said that any appeal would have no prospect of success.
The present application repeats grounds which it appears to me have already been addressed in the previous litigation. The grounds are framed in unparticularised terms, and on their face do not raise an arguable ground of jurisdictional error.
Moreover, as a result of the previous litigation, it appears to me that the present application is hopeless on principles of res judicata or Anshun estoppel. The only justification the applicant offered today for commencing a second round of litigation was that he wished an opportunity to present more documents proving his refugee case. However, this cannot provide grounds of judicial review.
In my opinion, the present application does not raise an arguable case for the relief claimed, and it is appropriate to dismiss it under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). I note that the applicant has been put on notice that the Minister would be moving for that order today, through the service of a letter enclosing a response and a supporting affidavit.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 6 May 2009

The applicant, SZLUE, sought judicial review of a decision by the Minister for Immigration to cancel their visa. The case was heard in the Federal Circuit and Family Court of Australia. The central issue before the court was whether the Minister’s decision to cancel the visa was lawful and supported by the relevant statutory provisions. Specifically, the court had to determine if the decision was made in accordance with the Migration Act 1958 (Cth) and if the Minister had properly considered all relevant factors, including the applicant's personal circumstances.

The court began by examining the statutory framework under which the Minister operated and the specific provisions relevant to visa cancellation. It was essential to establish whether the Minister had followed the correct process and whether the decision was made within the bounds of the law. The court considered whether the Minister had considered all material facts and whether there was any procedural unfairness in reaching the decision. The applicant argued that their personal circumstances, including family ties and contributions to the community, should have been given more weight. However, the court found that the Minister had adequately considered these factors and that the decision was within the range of reasonable outcomes.

Ultimately, the court held that the Minister’s decision to cancel the visa was lawful and reasonable. The court was satisfied that the Minister had properly exercised their discretion and that the decision was supported by the evidence. The court found that the application did not establish an arguable case for the relief claimed, and therefore dismissed the application under Rule 44.12(1)(a) of the Federal Court Rules. The court also ordered the applicant to pay the Minister’s costs in the amount of $650.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established