SZCWJ v Minister for Immigration - [2007] FMCA 1980

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCWJ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1980

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – prior judicial proceedings – abuse of process.

Federal Magistrates Court Rules 2001 r.44.12
Migration Act 1958 (Cth): ss.424A(i); 425

Rogers v The Queen (1994) 181 CLR 251 at 255-256;
Somanader and Ors v Minister for Immigration and Multicultural Affairs and Anor (2000) 178 ALR 677 per Merkel J at [52];
Walton v Gardiner (1993) 177 CLR 378 at 393;
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]

First Applicant:

SZCWJ

Second Applicant:

SZCWK

Third Applicant:

SZCWL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2170 of 2007

Judgment of:

Emmett FM

Hearing date:

27 November 2007

Date of last submission:

27 November 2007

Delivered at:

Sydney

Delivered on:

27 November 2007

REPRESENTATION

Applicant in person with Hindi interpreter

Solicitors for the Respondent:

Ms L. Buchanan, Australian Government Solicitors

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2170 of 2007

SZCWJ

First Applicant

SZCWK

Second Applicant

SZCWL

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants claim to be entitled to a protection visa by reason of a fear of persecution in India because of their inter-religious marriage. The first-named applicant (“the Applicant”) and the second-named applicant (“the Applicant Wife”) are the parents of the third-named applicant (“the Applicant Child”) who is presently five years old.
On 12 July 2007, the applicants filed an application in this Court seeking judicial review of a decision of the Refugee Review Tribunal dated 15 June 2007. The Tribunal dismissed the applicants’ application for review on the basis that an earlier Refugee Review Tribunal had affirmed the decision under review and subsequent judicial review had confirmed that the Refugee Review Tribunal’s decision was a privative clause decision.
The applicants attended a directions hearing before a Registrar of this Court on 5 September 2007 at which time the applicants were given leave to file and serve an amended application and any further evidence upon which they relied by 24 October 2007. On that occasion the matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 upon the application of the first respondent. It is that application that is before the Court this morning.
There has been no further document filed by or on behalf of the applicants since their initiating application.
The first respondent seeks two orders this morning. The first is that the proceeding before this Court be dismissed as an abuse of the Court’s process. The second is that the applicants require leave of the Court before filing any further application seeking review of the Tribunal’s decision dated 12 July 2007, the decision of the Refugee Review Tribunal dated 29 January 2004 and the decision of the delegate of the first respondent dated 24 June 2003.
In support of their application, the first respondent read the affidavit of Denise Attard, affirmed 22 November 2007. Ms Attard’s affidavit annexes an application for review by the Refugee Review Tribunal lodged on 28 August 2003 in respect of the delegate’s decision dated 24 June 2003.
On 29 January 2004 the Refugee Review Tribunal affirmed the delegate’s decision to refuse the applicants protection visas on the basis that the applicants were not persons to whom Australia has protection obligations. The Applicants and Applicant Wife attended that hearing before the Refugee Review Tribunal and gave evidence.
On 5 March 2004, the applicants filed an application in this Court for judicial review of the Refugee Review Tribunal’s decision. On 7 April 2006, Scarlett FM dismissed the proceeding on the basis that the Refugee Review Tribunal’s decision of 29 January 2004 was not affected by jurisdictional error and is a privative clause decision. On 31 July 2006, the Federal Court upheld the decision of Federal Magistrate Scarlett and confirmed that the Refugee Review Tribunal’s decision dated 29 January 2004 is a privative clause decision. On 18 April 2007, the High Court of Australia refused leave to the applicants on the basis that the decision of the Federal Court of 31 July 2006 was correct.
On 2 May 2007, the applicants lodged a further application for review of the delegate’s decision with the Refugee Review Tribunal. The Refugee Review Tribunal, differently constituted (“the Tribunal”) found that it had already discharged its functions under the Migration Act to review the delegate’s decision and no longer had jurisdiction in relation to that decision.
As stated above, the applicants sought judicial review of that decision by the Tribunal by way of application filed in this Court on 12 July 2007.
It is that decision that is presently before this Court.
The grounds relied upon are general assertions of error by the Tribunal that it denied the applicants natural justice by failing to put to the applicants country information that was adverse to the applicants, and failing to comply with s.424A(i) and s.425 of the Migration Act 1958 (Cth) (“the Act”).
The first respondent has set out accurately and correctly the relevant propositions for this Court to consider in its outline of submissions as follows:
“11. The RRT found that it did not have jurisdiction to review the delegate’s decisions because, having previously conducted a review of the delegate’s decision, it had already discharged its functions under the Migration Act 1958 (Cth) (“the Act”) to review the delegate’s decision.
12. The first respondent submits that the RRT was plainly correct in finding that it was functus officio in respect of the delegate’s decision: see Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1996) 76 FCR 301, in particular at page 311 and SZDMO v Minister for Immigration and Multicultural Affairs [2006] FCA 989 at [6].
13. Against the background of having already sought review of the delegate’s decision in the RRT, and having sought review of the first RRT decision in the Federal Magistrates Court, the Federal Court and the High Court, making a second application to the RRT for review of the same delegate’s decision and then commencing further proceedings for judicial review in this Court is plainly an abuse of the process of the Court: see SZASP v Minister for Immigration and Citizenship [2007]FCA 771.”
I agree with and adopt as part of the Court’s reasons the submissions of the first respondent. Accordingly, the proceeding before this Court commenced by way of application on 12 July 2007 is dismissed. The Refugee Review Tribunal no longer has jurisdiction to review the decision of the delegate.
In support of the further order sought by the first respondent that the applicants require the leave of the Court to file any further applications seeking review of either of the decisions of the Refugee Review Tribunal or the delegate’s decision, the first respondent submitted that the litigation history of the applicants demonstrates that the application before this Court is an abuse of process.
The applicants have exercised every right of review to the highest possible level and it has been held by the Courts on three occasions that the first Refugee Review Tribunal decision dated 29 January 2004 is a privative clause decision. In the circumstances, the filing of the application in this Court is an abuse of the Court’s process and that the bringing of similar applications would be unjustifiably vexatious or oppressive and would bring the administration of justice into disrepute. (Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]; Somanader and Ors v Minister for Immigration and Multicultural Affairs and Anor (2000) 178 ALR 677 per Merkel J at [52]; Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256)
I am satisfied that it is appropriate that the order sought by the respondents, that the applicants require leave before filing any further application seeking judicial review of any of the three decisions referred to above, be made.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 4 December 2007