SZMME v MIAC

Case [2009] FMCA 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMME v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 323

MIGRATION – Visa – Protection visa – application for review of Refugee Review Tribunal decision made on 27 January 1999 – citizen of China claiming the application was not made on his instructions – where applicant did not attend the Tribunal hearing – whether the application for a protection visa was a valid application – whether the applicant made a valid application to the Refugee Review Tribunal – whether Tribunal decision compromised by fraud.

DELAY – Discretion – whether unexplained and unwarrantable delay – whether relief should be refused in the Court’s discretion – where Refugee Review Tribunal had no jurisdiction – where certiorari will lie but mandamus will not lie.

Migration Act 1958 (Cth), ss.412, 414, 425, 426, 474, 476
Migration Regulations 1994 (Cth) reg5.03
Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584
Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487
SZGJO v Minister for Immigration & Anor [2005] FMCA 1349 followed
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 followed
Applicant: SZMME
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1701 of 2008
Judgment of: Scarlett FM
Hearing date: 17 December 2008
Date of Last Submission: 17 December 2008
Delivered at: Sydney
Delivered on: 27 April 2009

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Mr Kennett
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the First Respondent’s costs fixed in the sum of $9900.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1701 of 2008

SZMME

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The applicant, a citizen of the People’s Republic of China, applies for review of a decision of the Refugee Review Tribunal made on


    27th January 1999

    , affirming a decision not to grant him a Protection visa. He seeks the following:

    (1)A declaration that he has not previously made an application to the first respondent, the Minister for Immigration and Citizenship, for a protection visa;

    (2)An order or declaration that the decision of the second respondent, the Refugee Review Tribunal, was made in excess of jurisdiction and is null and void; and

    (3)A writ of certiorari.

  2. The applicant relies on the following grounds:

    (1)The second respondent had no authority under the (Migration) Act to consider any application purportedly made for review of a decision of the first respondent to refuse the applicant a protection visa because the applicant had never made an application for a protection visa.

    (2)Further and in the alternative the second respondent acted pursuant to a process compromised by the fraudulent conduct of a person representing himself as a migration agent. As a…

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AGLC
SZMME v MIAC [2009] FMCA 323
Case
[2009] FMCA 323
Decision Date

CaseChat Overview and Summary

The case of SZMME v MIAC involved the applicant, a citizen of China, who sought judicial review of a decision made by the Refugee Review Tribunal on 27 January 1999. The applicant contested the Tribunal's decision that his application for a protection visa was not made on his instructions, arguing that he did not attend the hearing due to being unaware of the proceedings. The dispute centred on whether the application for a protection visa was valid, and whether the application to the Refugee Review Tribunal was properly made. Additionally, the applicant questioned whether the Tribunal's decision was compromised by fraud.

The court had to determine several legal issues, including the validity of the application for a protection visa and whether the application to the Refugee Review Tribunal was made on the applicant's instructions. The court also had to consider whether the Tribunal's decision was compromised by fraud and whether there was an unexplained and unwarrantable delay in bringing the application for review. Furthermore, the court needed to decide if relief should be refused due to the discretion exercised in cases where the Refugee Review Tribunal had no jurisdiction.

The court found that the application was not made on the applicant's instructions, and there was no evidence of fraud or improper conduct by the Tribunal. The court held that the application was not a valid application to the Refugee Review Tribunal, and as such, the Tribunal had no jurisdiction to review the decision. The court also found that there was an unexplained and unwarrantable delay in bringing the application for review, which warranted refusal of relief. Consequently, the application was dismissed, and the applicant was ordered to pay the costs of the First Respondent, fixed at $9900.00.

Orders

Orders of the court

1.

The application is dismissed.

2.

The applicant is to pay the First Respondent’s costs fixed in the sum of $9900.00.

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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