NBGO v Minister for Immigration

[2007] FMCA 1626

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBGO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1626

MIGRATION – Where applicant has previously exhausted all avenues of review – indemnity costs.

Federal Magistrates Court Rules 2001

Applicants: NBGO, SZLFN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File number:	SYG2595 of 2007

Judgment of: Raphael FM

Hearing date: 17 September 2007

Date of last submission: 17 September 2007

Delivered at: Sydney

Delivered on: 17 September 2007

REPRESENTATION

For the Applicants: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicants pay the first respondent’s costs to be assessed on an indemnity basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2595 of 2007

NBGO, SZLFN

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application by the first respondent for summary judgment dismissing an application filed on 22 August 2007.  The application seeks review of a Tribunal decision made on 5 April 2004.  The applicant has claimed that she was a person to whom Australia owed protection obligations on the grounds of her family’s association with the Sikh militant movement, in particular the Sikh Student Federation.  The Tribunal did not accept that the applicant would have problems if she returned to the Punjab and affirmed the delegate’s decision to refuse her a protection visa.

2. The applicant then took the steps available to her to seek review of the Tribunal’s decision to file an application for review in the Federal Court on 21 May 2004.  That application was referred to this court and heard by Barnes FM who dismissed it on 19 July 2006.  On 4 August 2006 the applicant filed a notice of appeal in the Federal Court but the appeal was dismissed by Rares J on 16 November 2006.

3. On 8 December 2006 the applicant filed an application for special leave to the High Court which was dismissed by Gummow J and Heydon J on 2 August 2007.  The applicant then brought these proceedings which seek review of the same Tribunal decision.  The application itself is in a standard form clearly copied from some other form and raises no matters that could not have been raised at the earlier hearings. 

4. Before me today the Minister seeks an order that I make a finding that the proceedings are an abuse of process pursuant to the Federal Magistrates Court Rules 2001 Rule 13.10(c). The applicant in response has told me that she would suffer problems if she returned to India and that she did not receive justice in relation to the Tribunal hearing or the series of hearings before the three Federal Courts. She tells me that her sons are already in trouble although as two of them live in India there would not be very much that she could do for them even if she was granted a protection visa.

5. It is well known that there is a large Sikh Indian community in Griffith from where the applicant comes.  It is in the interests of justice and of that particular community that it is made absolutely clear to them that there is no point whatsoever in trying to prolong a stay in this country by refiling proceedings for a review of decisions that have already been reviewed by all the available courts.  It involves the community in costs and expenses and avails the applicants nothing other than an indeterminate continuation of their stay under the pressure of a Damoclean Sword hanging over their heads in the shape of the Department of Immigration & Citizenship.

6. An application such as the one before me is clearly an abuse of process. As the applicant can see, just a month has passed since she filed it before it is dismissed.  The amount of time she has thus gained to remain in this country is so small that it seems to me hardly worthwhile. 

7. I dismiss the application.  I order that the substantive applicant pay the first respondent’s costs which I believe should be assessed on an indemnity basis.  I have asked the Minister’s representative to send me a letter advising me of the amount of those costs.  A copy will be sent to the applicant.  If she does not make any comment upon it within 14 days of the date of the letter I would propose to make an order granting costs in the amounts there set out.  I hope that the applicant will take the opportunity to advise her community in Griffith of the course taken today so that others may be warned.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: