SZTEZ v Minister for Immigration & Border Protection

The applicant, a citizen of Bangladesh, sought judicial review of a decision by the Refugee Review Tribunal (RRT) that affirmed the refusal of his protection visa. The applicant had arrived in Australia as an irregular maritime arrival in 2012 and claimed a fear of returning to Bangladesh due to his involvement with the Bangladesh National Party (BNP) and the ruling Awami League party's alleged threats against him. The RRT had found doubts regarding the credibility of his claims of fear of harm based on his political opinion. The applicant subsequently filed an amended application in the Federal Circuit Court, alleging jurisdictional error by the RRT in failing to consider relevant evidence and apply the correct tests for complementary protection and real risk of harm.

The central legal issue before the court was whether the applicant's grounds for judicial review possessed sufficient prospects of success to warrant setting aside a notice of discontinuance he had filed. The applicant argued that exceptional circumstances, including his marriage to an Australian citizen and subsequent attempts to lodge an onshore partner visa, necessitated the discontinuance of his judicial review proceedings. He contended that the court possessed inherent power to set aside the notice of discontinuance in such circumstances, allowing him to pursue his original application for judicial review.

Justice Emmett considered the applicant's grounds for judicial review, which alleged that the RRT had acted without jurisdiction or in excess of jurisdiction by failing to take into account relevant considerations, unreasonably raising doubts about his political activities, and making decisions based on assumptions and probabilities rather than the "real risk test" of persecution and harm. The applicant also claimed the RRT had failed to apply the correct test for complementary protection under section 36(2)(aa) of the Migration Act 1958. However, the court found that the applicant had not demonstrated that his grounds for judicial review had sufficient prospects of success. The court noted that the RRT had considered the applicant's account alongside country information and had expressed doubts about the credibility of his claims. The court concluded that it was not necessary in the interests of justice to set aside the notice of discontinuance.