SZSYS BY His Litigation Representative, SZSYT & Ors v Minister for Immigration and Border Protection

SZSYS BY HIS LITIGATION REPRESENTATIVE, SZSYT & ORS
v
MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR
[2014] HCASL 219
S238/2014

The second and third applicants are husband and wife. They are Indian nationals who applied unsuccessfully for Protection (Class XA) visas after coming to Australia. After exhausting their review and appeal rights, but while still in Australia, the third applicant gave birth to a son. He is the first applicant. Applications for protection visas were lodged on behalf of the three applicants in June 2012. The parents were notified that their applications were invalid because they were prevented from making further applications under the Migration Act 1958 (Cth) ("the Act")[1], having previously been refused protection visas. Subsequently, a delegate of the first respondent refused the application lodged on behalf of the child.
[1]Section 48A.
All three applicants applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision. The Tribunal affirmed the decision, holding that it had no jurisdiction in relation to the parents and that it was not satisfied that the child met the criteria for the grant of a protection visa under s 36 of the Act.
An application for judicial review to the Federal Circuit Court of Australia (Judge Emmett) was dismissed[2].
[2]SZSYS & Ors v Minister for Immigration and Border Protection& Anor [2014] FCCA 965.
An appeal to the Federal Court of Australia (Katzmann J) was dismissed[3].
[3]SZSYS v Minister for Immigration and Border Protection [2014] FCA 857.
The applicants now apply for special leave to appeal against the orders of the Federal Court of Australia. They do not have legal representation and their application falls to be determined under r 41.10 of the High Court Rules 2004 (Cth).
The applicants' grounds in the draft notice of appeal make unparticularised assertions that Katzmann J "failed to find that the [Tribunal] has not found any evidence in relation to my claims and thus its decision [sic] influenced by sufficient doubts" and that Katzmann J erred "in finding that the Tribunal had accorded procedural fairness to the appellant affirming the decision of the Delegate of the [first respondent]". The applicants' written case is formulaic and unrelated to the grounds or to Katzmann J's reasons.
There is no reason to doubt the correctness of the decision below. If special leave to appeal were granted, the appeal would have no prospect of success.
The application is dismissed.
Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
10 December 2014 S.J. Gageler

CaseChat Overview and Summary

In the case of SZSYS by His Litigation Representative, SZSYT & Ors v Minister for Immigration and Border Protection, the applicants were Indian nationals who applied unsuccessfully for Protection (Class XA) visas in Australia. The second and third applicants, a married couple, had their applications rejected and were prevented from making further applications under the Migration Act 1958 (Cth). The third applicant subsequently gave birth to a son, the first applicant, while the family remained in Australia. Their applications for protection visas were lodged in June 2012, but were ultimately refused by a delegate of the Minister for Immigration and Border Protection. The applicants sought review of this decision through the Refugee Review Tribunal and later applied for judicial review in the Federal Circuit Court of Australia and the Federal Court of Australia, both of which were dismissed.

The legal issues before the court were whether the Federal Court had erred in affirming the decision of the delegate and the Tribunal, and whether the Tribunal had accorded procedural fairness to the applicants. The applicants argued that the Tribunal had not found any evidence in relation to their claims and that the Federal Court had erred in finding that the Tribunal had afforded procedural fairness. The court was required to determine if the applicants' grounds for appeal were valid and if the appeal had any prospect of success.

The court found that the applicants' grounds for appeal were unparticularised and unrelated to the grounds or to the Federal Court's reasons. The applicants' written case was formulaic and lacked any substantive argument. The court was not convinced that there was any reason to doubt the correctness of the decision below, and if special leave to appeal were granted, the appeal would have no prospect of success. Consequently, the application for special leave to appeal was dismissed.

The court directed the Registrar to draw up, sign, and seal an order dismissing the application. This decision highlights the importance of particularising grounds for appeal and providing a substantive argument in support of an application for special leave to appeal. Without such grounds, the court is unlikely to grant leave to appeal, particularly where the decision below appears to be correct.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established