SZBDW v Minister for Immigration

[2007] FMCA 1780

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBDW & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1780

MIGRATION – Review of RRT decision – application abuse of process.

Migration Act 1958, s.424A

First Applicant: SZBDW

Second Applicant: SZBDX

Third Applicant: SZBDY

Fourth Applicant: SZBDZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2871 of 2007

Judgment of: Raphael FM

Hearing date: 10 October 2007

Date of last submission: 10 October 2007

Delivered at: Sydney

Delivered on: 10 October 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicants to pay the First Respondent's costs assessed in the sum of $2000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2871 of 2007

SZBDW

First Applicant

SZBDX

Second Applicant

SZBDY

Third Applicant

SZBDZ

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me a Notice of Motion filed by the first respondent in these proceedings seeking summary dismissal of an application filed on 18 September 2007 for judicial review of a decision by the Refugee Review Tribunal handed down on 17 July 2003.

2. This decision was the subject of proceedings brought in this Court by application filed on 9 August 2003 determined by Mowbray FM on 25 May 2005 dismissing the application. The applicant took advantage of his rights to appeal the decision of Mowbray FM to the Federal Court. That appeal was dismissed on 13 October 2006 when the applicant, through his counsel, made an application to amend by adding new grounds of appeal, being matters that had not been before the Federal Magistrate.

3. The substantive appeal and the application for the amendment were both dismissed by Gyles J on 13 October 2006. The applicant, not being satisfied with the decision of his Honour sought leave from the High Court of Australia to further ventilate his concerns. On 29 August 2007 Hayne and Crennan JJ refused to grant leave, saying, inter alia:

   “In the Federal Court, the applicant sought to raise a point not agitated in the Federal Magistrates Court.  Gyles J refused the applicants leave to do that.  One of the bases for that refusal was that the new point depended upon a question of fact not raised in the Federal Magistrates Court.  There is no reason to doubt the correctness of the conclusion reached by Gyles J that, in the particular circumstances of this case the applicant should not be permitted to rely on the point that they sought to raise for the first time on appeal. And in the other respects which it is sought to challenge the decision of Gyles J, we are not persuaded those conclusions are attended by doubt.”

4. The application which was filed in this Court seeks to review the same decision of the Tribunal that has already been the subject of decisions in all three Federal Courts. The applicants claim that there is something new about this application. Of course, if there was something new that he could have raised at the previous proceedings he would be prevented from doing so in these proceedings by the doctrine known as Anshun estoppel.

5. If there was nothing new the applicants would be prevented by the doctrine known as res judicata.  Having considered the applicants’ written submissions filed today and an affidavit filed by the male applicant on 18 September 2007 I am quite satisfied that there is actually nothing new that they wish to raise. They make arguments in relation to s.424A of the Migration Act1958 which were before the Federal Magistrate and before Gyles J. To the extent that they might not have been before Gyles J this was because his Honour declined to allow them to be before him and the High Court upheld that decision.

6. The application is an abuse of the processes of this Court. It is well that the Minister has so speedily moved to have the application struck out. I dismiss the application.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  24 October 2007