SZVEY v Minister for Immigration - [2015] FCCA 768

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEY v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 768

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Abuse of process – summary dismissal – proceedings summarily dismissed.

Legislation:
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476, 477

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28
Kong v Minister for Immigration & Citizenship (2011) 199 FCR 375; [2011] FCA 1345

Applicant:

SZVEY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 846 of 2015

Judgment of:

Judge Street

Hearing date:

30 March 2015

Date of Last Submission:

30 March 2015

Delivered at:

Sydney

Delivered on:

30 March 2015

REPRESENTATION

Solicitors for the Applicant:

Mr F. Nikjoo
Michaela Byers Solicitor

Solicitors for the Respondents:

Ms N. Blake
Australian Government Solicitor

ORDERS

Application for extension of time is refused.
Proceedings be summarily dismissed.
Applicant pay First Respondent’s costs fixed in the sum of $3000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 846 of 2015

SZVEY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional under the Court’s jurisdiction under s.476 of the Migration Act 1958. The applicant filed on 23 April 2015 an application alleging a combination of grounds of alleged jurisdictional error in respect of a decision of the Tribunal delivered on 1 September 2014 and in circumstances where the applicant has received a notice on 26 March 2015 of intention that she be remove from Australia on 31 March 2015.
I take into consideration in respect to the Court’s summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].
The application was filed by a solicitor of the Court and the notice was ticked that no extension of time was required under s.477, which was wrong. More importantly however, it appears that the applicant had in fact filed an application on 2 October 2014 in respect of the very same decision of the Tribunal of 1 September 2014, although the applicant was at that stage self-represented, which application was dismissed by an order of this Court on 4 February 2015 by Judge Cameron. No appeal has been taken from that decision of Judge Cameron by the applicant to the Federal Court of Australia.
The Court was provided with an affidavit by the solicitor of the applicant sworn today which annexed a copy of the pro-forma letter from 12 March 2014 in respect of the data breach that had occurred, and which matter went to one of the new purported grounds sought to be raised…

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: [2015] FCCA 768
Decision Date: 30 March 2015

CaseChat Overview and Summary

The applicant, SZVEY, sought judicial review of a decision by the Refugee Review Tribunal concerning a protection (class XA) visa. The Minister for Immigration was the first respondent. The proceedings were heard in the Federal Circuit Court of Australia before Judge Street.

The primary legal issue before the Court was whether the Refugee Review Tribunal had committed a jurisdictional error in its decision-making process. Additionally, the Court considered whether the applicant's proceedings constituted an abuse of process, warranting summary dismissal.

Judge Street found no jurisdictional error on the part of the Tribunal. The Court concluded that the applicant's case was without merit and that continuing the proceedings would be an abuse of process. Consequently, the Court ordered that the application for an extension of time be refused and that the proceedings be summarily dismissed. The applicant was also ordered to pay the First Respondent's costs fixed at $3000.

Orders

Orders of the court

1. Application for extension of time is refused.

2. Proceedings be summarily dismissed.

3. Applicant pay First Respondent’s costs fixed in the sum of $3000.

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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