SZCRX & Anor v Minister for Immigration & Anor

[2008] FMCA 641

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCRX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 641

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a decision of a delegate of the Minister not to grant the applicants protection visas – repeat application.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process – where the decision of the Refugee Review Tribunal has been previously the subject of judicial review – where application has reasonable prospects of success – where application is incompetent – where the first applicant was notified of the decision of the Refugee Review Tribunal when he attended the handing down of the decision – where application for judicial review is out of time.

Migration Act 1958 (Cth) ss.424A, 477
Federal Magistrate Court Rules 2001 r.13.10

Minister of Immigration & Citizenship v SZKKC [2007] FCAFC 105
SZCRX & Anor v Minister for Immigration & Anor [2007] FMCA 537
SZCRX v Minister of Immigration & Citizenship [2007] FCA 1131
SZCRX & Anor v Minister for Immigration & Citizenship [2008] HCASL 86

First Applicant: SZCRX

Second Applicant: SZCRY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 894 of 2008

Judgment of: Scarlett FM

Hearing date: 5 May 2008

Date of Last Submission: 5 May 2008

Delivered at: Sydney

Delivered on: 9 May 2008

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Ms Nandagopal

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The Application is summarily dismissed under the provisions of Rule 13.10. 

2. The Application is summarily dismissed as incompetent.

3. The Applicants are to pay the First Respondent's costs fixed in the sum of $1,790.00. 

4. No further application for review of the decision of the Refugee Review Tribunal signed on 30 May 2006 and handed down on 20 June 2006 is to be accepted for filing without the leave of the Court. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 894 of 2008

SZCRX

First Applicant

SZCRY

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicants asked the Court for judicial review of a decision of the Refugee Review Tribunal.  The decision of the Tribunal was made on 30^th May 2006. They claim that the Tribunal exceeded its jurisdiction in not considering the First Applicant's well‑founded fear of persecution for membership of a political group in Bangladesh and by reason of marriage to a person of lower caste. They claim that the Tribunal failed to comply with the provisions of s.424A(1) of the Migration Act. They claim the Tribunal failed to consider the documents that were provided in support of their claim and failed to take into consideration the threat to their lives and liberty. 

Notice of Motion

1. The Minister for Immigration & Citizenship has brought a Notice of Motion asking the Court for orders summarily dismissing the Applicants' application.

2. The reasons why this application is brought can be divided into two main areas. First, that the application is out of time. The application for review of a decision of the Refugee Review Tribunal has been made more than 28 days after the actual notification of the Tribunal decision as required by sub‑section 477(1) of the Migration Act. The Minister says that the Court is not in a position to provide an extension of time under the provisions of sub‑section 477(2)(a) of the Act because the application exceeds not only the 28 days but the additional period of 56 days allowed.

3. The other reason is that the decision of the Refugee Review Tribunal has already been the subject of judicial review by this Court.  It is for those reasons that the Minister asks the Court to make an order for summary dismissal and makes the claims that:

   a)There have been other judicial review proceedings in relation to the decision. 

   b)The Applicants have no reasonable prospect of successfully prosecuting the proceeding or claim. 

   c)The proceeding or claim for relief is frivolous or vexatious. 

   d)The proceeding or claim for relief is an abuse of the process of the Court. 

4. The Minister also asks the Court to make an order directed to the Registry of the Court saying that no further applications for review of the Tribunal decision should be accepted for filing without the leave of a Federal Magistrates Court. 

5. This is one case where it is possible to show that there has been actual notification of the Tribunal decision. The Court is aware of the decision of the Full Court of the Federal Court in Minister of Immigration & Citizenship v SZKKC[1], but in this case it is clear that the First Applicant attended the handing down of the Tribunal decision and acknowledged receipt of the documents on 20^th June 2006.  A copy of the handing down information form is annexure B to the affidavit of Katherine Hooper affirmed on 29^th April 2008.  That in itself would be sufficient to render the application incompetent as being out of time.  However, it is a fact that the application for review has already been dealt with. 

   [1] [2007] FCAFC 105

6. On 22^nd March 2007 Smith FM dismissed the Applicants' application for review of the same Tribunal decision with costs. (See SZCRX & Anor v Minister for Immigration & Anor[2].) 

   [2] [2007] FMCA 537

7. The Applicants appealed against his Honour's decision and on 3^rd August 2007, in the Federal Court, exercising the jurisdiction of the Full Court of the Federal Court, Edmonds J dismissed the appeal with costs. (See SZCRX v Minister of Immigration & Citizenship[3].) 

   [3] [2007] FCA 1131

8. The Applicants then sought special leave to appeal to the High Court of Australia. On 28^th March 2008 their Honours Gummow and Kiefel JJ dismissed the application for special leave. (See SZCRX & Anor v Minister for Immigration & Citizenship[4].) 

   [4] [2008] HCASL 86

Conclusion

1. Undeterred by this string of rejections, the Applicants then, on 14^th April 2008, started their process of litigation again by filing this application at the Registry of the Federal Magistrates Court. As can be seen, it is an application entirely without any merit whatsoever. The application for a summary dismissal must succeed and the application will be dismissed with costs. 

2. I propose to dismiss the application summarily under the provisions of r.13.10. The application will also be summarily dismissed as incompetent.  I will make an order for costs in favour of the First Respondent and I will order that no further application for review of the decision of the Refugee Review Tribunal, signed on 30^th May 2006 and handed down on 20^th June 2006, is to be accepted for filing without leave of the Court. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  15 May 2008