SZBJQ v Minister for Immigration & Anor
[2007] FMCA 921
•4 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 921 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa. PRACTICE & PROCEDURE – Abuse of process – second application to Tribunal to review delegate’s decision – summary dismissal. |
| Migration Act 1958 (Cth), s.412 |
| SZBJQ v Minister for Immigration [2005] FCAFC 626 SZBJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1346 SZBJQ v Minister for Immigration & Anor [2006] FMCA 473 SZBJQ v Minister for Immigration & Multicultural Affairs [2006] FCA 837 SZHWA & Ors v Minister for Immigration & Anor [2006] FMCA 451 |
| Applicant: | SZBJQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1455 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 June 2007 |
| Date of Last Submission: | 4 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Mr Dooley |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed as an abuse of process.
The applicant is to pay the first respondent’s costs fixed in the sum of $1,650.00.
No further application for review of any decision of the Refugee Review Tribunal involving this applicant is to be accepted for filing without leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1455 of 2007
| SZBJQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The substantive application before the Court is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 5th April 2007 that it does not have jurisdiction in this matter.
The first respondent Minister seeks orders that the application should be struck out on the basis that there is no reasonable prospect of success, that the proceedings are frivolous or vexatious and that proceedings are an abuse of process.
The applicant commenced proceedings by filing an application on
8th May 2007. He seeks orders in the nature of mandamus, certiorari and prohibition. He seeks judicial review on the grounds, first, that he claims that he did not receive natural justice, second, that the Tribunal identified the wrong issue, and third, that the Tribunal either failed to exercise its jurisdiction or acted in excess of its jurisdiction.
The applicant had lodged an application for review on 28th February 2007. The Tribunal formed the preliminary view that it did not have jurisdiction because it had already reviewed the delegate's decision. The Tribunal wrote to the applicant on 6th March 2007 inviting submissions. It did not receive a response.
I have before me submissions by the first respondent Minister seeking summary dismissal. The respondent also relies on an affidavit of Ms Nicola Johnson, solicitor, which annexes a chronology and attaches a copy of the applicant's application for review. A perusal of the chronology will give an accurate idea of the progress of this matter.
In summary, the applicant applied for a protection visa on
3rd April 2003. The application was refused on 14th April 2003.
On 11th May 2003 the applicant sought a review of the delegate's decision from the Refugee Review Tribunal and attended a hearing on 8th July 2003. On 6th August 2003 the Tribunal handed down its decision affirming the decision of the delegate not to grant the applicant a protection visa. The applicant then on 2nd September 2003 sought judicial review of the Tribunal decision in the Federal Magistrates Court.
On 12th May 2005 Driver FM dismissed that application with costs. The citation for that decision is SZBJQ v Minister for Immigration [2005] FMCA 626. The applicant then appealed against that decision and on 6th September 2005 Hely J dismissed the appeal with costs.
The citation to that decision is SZBJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1346. The applicant then applied on 30th September 2005 to the High Court of Australia seeking special leave. That application was dismissed on 9th February 2006. Notwithstanding that string of rejections, the applicant then on 24th February 2006 commenced proceedings in the Federal Magistrates Court seeking a review of the Tribunal decision.
On 10th April 2006 Lloyd-Jones FM dismissed the application with costs. The citation to that decision is SZBJQ v Minister for Immigration & Anor [2006] FMCA 473. The applicant then appealed. In fact he sought leave to appeal and on 14th June 2006 Moore J of the Federal Court dismissed the application with costs. The citation to that decision is SZBJQ v Minister for Immigration & Multicultural Affairs [2006] FCA 837. The applicant again sought special leave to appeal to the High Court of Australia on 11th July 2006. On 9th February 2007 Gummow and Heydon JJ dismissed the application for special leave. Undaunted, the applicant then on 28th February 2007 brought his next application to the Refugee Review Tribunal for review of the delegate's decision. The Tribunal found that it had no jurisdiction. The Tribunal found that the protection visa application had been finally determined by the Tribunal decision on 6th August 2003 and that judicial review of that decision had been unsuccessful. The Tribunal concluded that it had already discharged its functions under the Act and it no longer had jurisdiction.
In my view, the Tribunal's decision shows no error, and indeed the application for review of the decision is out of time as it was not made within the time set out by s.412. As the Minister submits, although the legislation does not specifically preclude a further review application being submitted to the Tribunal, the very scheme of review contained in the legislation makes a further application invalid. The time limit provided in the legislation militates against a second review application being considered. If the Tribunal was to consider afresh an application for review of a decision of the delegate it would in effect be reviewing its own decision. The Tribunal does not and cannot have the power to conduct a further review of the delegate's decision unless a court of competent jurisdiction has quashed an earlier decision on review and directed the review application be conducted afresh. I refer to the decision of SZHWA & Ors v Minister for Immigration & Anor [2006] FMCA 451.
In my view, this case is just another example of a scam that is still doing the rounds, which is the scam of making a fresh application to the Tribunal out of time to review a decision that has already been reviewed. Applicants need to become aware of the fact that the Court is onto this particular abuse, because abuse it is. It is an application to the Refugee Review Tribunal that has no hope of succeeding where a decision has already been reviewed and appealed all the way to the High Court of Australia. This is the third time that this applicant has come back to Court. He went all the way through to the High Court the first time and at that stage he should have realised that he had to take no for an answer. Notwithstanding, he went through the procedure again and has started it the third time. This is a most blatant abuse of process.
The application is dismissed as an abuse of process.
There is an application for costs in the amount of $1,650.00. I order that the applicant is pay to the first respondent's costs in the sum of $1,650.00, which, to my mind, is a most modest sum, and indeed it is only $50.00 more than Lloyd-Jones FM ordered on 10th April 2006 when the applicant was going for his second trip around the court system. I will order that no further application for review of any decision of the Refugee Review Tribunal involving this applicant is to be accepted for filing without leave of a Federal Magistrate.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 7 June 2007
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