SZODN v Minister for Immigration - [2010] FMCA 269

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZODN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 269

MIGRATION – Review of the Refugee Review Tribunal decision – Tribunal found it did not have jurisdiction to review delegate decision – application filed out of time – no reviewable error – review application dismissed.

The Applicants in these proceedings is not to be identified pursuant to s.91X Migration Act 1958 (Cth) and have been given the pseudonyms “SZODN” and “SZODO”.

Migration Act 1958 (Cth), ss.65(1), 91X, 417, 422, 424A, 425, 477

Abebe v Commonwealth (1999) 197 CLR 510
BFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 102
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372
VHAP 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 82

First Applicant:

SZODN

Second Applicant:

SZODO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 222 of 2010

Judgment of:

Lloyd-Jones FM

Hearing date:

7 April 2010

Delivered at:

Sydney

Delivered on:

21 April 2010

REPRESENTATION

Applicant:

The applicant appeared in person with the assistance of a Hindi interpreter.

Solicitors for the Respondents:

Ms Nanson (solicitor)Australian Government Solicitor

ORDERS

The application filed on 5 February 2010 is dismissed on an interlocutory basis pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $2,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 222 of 2010

SZODN

First Applicant

SZODO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application file on 5 February 2010 pursuant to s.476(1) of the Migration Act 1958 (Cth) (“the Act”) for a review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 March 2009 to affirm the decision of a delegate of the Minister for Immigration and Citizenship to refuse their application for a Protection (Class XA) visa. The applicants are self-represented litigants. The applicant husband was unable to appear so only the applicant wife appeared with a small child in her care. She was assisted by an interpreter. I believe it is in the interests of both parties to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The applicants who claim to be citizens of India arrived in Australia on 26 May 2008 and applied to the Department of Immigration & Citizenship…

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: [2010] FMCA 269
Decision Date: 21 April 2010

CaseChat Overview and Summary

The applicants, identified by pseudonyms SZODN and SZODO, have brought proceedings against the Minister for Immigration. They seek a review of a decision made by the Refugee Review Tribunal (the Tribunal), which found that it did not have jurisdiction to review a decision made by a delegate. The matter was heard in the Federal Court of Australia. The applicants argue that the Tribunal erred in its determination that it lacked jurisdiction and that there were other reviewable errors in the delegate's decision.

The primary legal issue before the court was whether the Tribunal had jurisdiction to review the delegate's decision. The applicants contended that the Tribunal should have exercised its jurisdiction despite the late filing of the review application. They further argued that the Tribunal made an error in finding that there were no reviewable errors in the delegate's decision. The Minister for Immigration defended the Tribunal's decision, asserting that the Tribunal was correct in finding that it lacked jurisdiction and that there were no reviewable errors.

The court found that the Tribunal's decision not to exercise its jurisdiction was appropriate, as the application was filed well beyond the statutory time limit. The court held that the Tribunal was correct in its finding that there were no reviewable errors in the delegate's decision. The court dismissed the application on an interlocutory basis, stating that there was no prospect of success on the merits. The court found that the applicants had not demonstrated a sufficient arguable case for the court to grant leave to proceed with the application.

Orders

Orders of the court

The application filed on 5 February 2010 is dismissed on an interlocutory basis pursuant to r.44.12(1)(a) 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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