S252 of 2003 v Minister for Immigration - [2008] FMCA 564

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S252 OF 2003 v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 564

MIGRATION – RRT decision – Indian applicants – previous history of litigation – no arguable case – no prospect of success – application dismissed summarily at first court date.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth)

(The Applicants) v Minister for Immigration & Multicultural Affairs [1999] FCA 1849
(The Applicants) v Minister for Immigration & Multicultural Affairs [2000] FCA 714
Applicants S252 of 2003 v Refugee Review Tribunal [2006] FCA 374
Applicants S252 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1570

Applicant:

APPLICANTS S252 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 710 of 2008

Judgment of:

Smith FM

Hearing date:

22 April 2008

Delivered at:

Sydney

Delivered on:

22 April 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms A Nanson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The first applicant must pay the first respondent’s costs in the sum of $900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 710 of 2008

APPLICANTS S252 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

There are two applicants in this application, a father and one of his sons. They were given their present pseudonym in previous litigation, together with other members of their family.
The present application, as with the previous litigation, asks the Court to judicially review a decision of the Refugee Review Tribunal dated 12 August 1999. In that decision, the Tribunal affirmed a decision of a delegate made on 27 May 1998, refusing to grant protection visas in response to visa applications lodged on 19 May 1998 by the father, his wife and one son. They sought protection against return to India.
The Tribunal interviewed the applicant father and addressed his refugee claims. It arrived at a conclusion that it was not satisfied that the applicant or his family were of adverse interest to the Indian authorities, or at risk from an organisation which they claimed to have been persecuting them.
The applicants sought judicial review, first in the Federal Court under its then limited jurisdiction under s.476 of the Migration Act. Their application was dismissed by Einfeld J on 17 December 1999 (see (The Applicants) v Minister for Immigration & Multicultural Affairs [1999] FCA 1849). On that occasion, the applicants were represented by an experienced junior counsel.
His Honour's judgment was upheld on appeal by Kiefel, North, and Mansfield JJ on 26 May 2000 (see (The Applicants) v Minister for Immigration & Multicultural Affairs [2000] FCA 714). The applicants were again represented by junior counsel. Their Honours closely examined the Tribunal's reasoning, and formed a view that the Tribunal had addressed all the refugee claims which were before it.
There was then a delay of some three and a half years, before further litigation was commenced by the applicants. It was commenced by way of the filing of a draft order nisi in the High Court of Australia on 30 May 2003, invoking jurisdiction comparable with this Court's present jurisdiction. The application was remitted to the Federal Court, where it appears to have been addressed on a final basis by Edmonds J.
His Honour gave a judgment on 11 April 2006, dismissing the application for an order nisi (see Applicants S252 of 2003 v Refugee Review Tribunal [2006] FCA 374). His Honour addressed a claim that the Tribunal had denied natural justice by not giving the applicants an opportunity to respond to information, but found no substance in this contention. He also addressed a contention claiming a failure to comply with s.424A of the Migration Act, but could find no breach. He formed the view that the Tribunal had dealt with the applicants’ claimed fears of persecution.
An application for an extension of time to appeal from Edmonds J’s judgment was brought. This was refused by Black CJ on 1 November 2006 (see Applicants S252 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1570). His Honour indicated that he might have granted the short extensions required, but found that the application was devoid of merit, and for that reason refused the application to extend time and dismissed an application for leave to appeal, if that were necessary.
The present application is now brought nearly 18 months after his Honour's judgment and, as I have indicated, seeks relief of the same nature as was sought in the matter remitted from the High Court to the Federal Court. The attached grounds are formulated without particulars. They appear to make allegations of perceived bias on the part of the Tribunal, failures to draw issues to the attention of the applicant in the course of the hearing, and to give him an opportunity to be heard, and an allegation of breach of s.424A of the Act.
No particulars or evidence in support of the allegations of bias and breach of procedural fairness has been presented to the Court. The Court is presented with some new evidence in support of a refugee claim, but this would not be admissible since it would be irrelevant to the Court's function.
The Minister has filed a response, inviting the Court to dismiss the application on the grounds of the previous litigation and that the application has not raised an arguable case for the relief claimed. The applicants have been put on notice prior to today's listing that the Court would be asked to dismiss the application summarily today.
I have heard the applicant father on that issue. He has not made any submission supporting the merits of the matter before the Court, except to repeat the contention that he feels that the Tribunal did not address his refugee claims. However, that contention has been very thoroughly addressed in the previous litigation, adversely to the applicants.
The applicant father also told me that his wife has left him with a family of now three young sons, and that they have all suffered materially and mentally as a result of uncertainty about their immigration status. It was with information of this nature, that he sought to justify the delay in coming back to Court for a third time, and to explain why he has come back to Court. He said that he also has new evidence to show the Court about his refugee claims.
However, in my opinion, his application is doomed to fail and should be summarily dismissed today.
I agree that the application does not raise an arguable case for the relief claimed. The grounds of the application are manifestly deficient, and lack any evidentiary support. Some of them have already been determined against the applicants, and issue estoppels would apply to prevent the re-opening of those issues. In relation to contentions which have not previously been put to the Courts, the applicants would face insuperable objections under principles of Anshun estoppel and abuse of process. In my opinion, given these features, and the previous history of litigation, there is no prospect that the Court would exercise its discretion to grant relief in the present case on the application now before the Court.
For that reason, I consider it appropriate to dismiss the application today under r.44.12(1)(a) of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 12 May 2008