SZCZV v Minister for Immigration

[2008] FMCA 1457

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCZV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1457

MIGRATION – RRT decision – third application for judicial review – no arguable case for judicial review – application dismissed at show‑cause hearing.

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

Applicant S1174 of 2003 v Refugee Review Tribunal [2004] FCA 289
SZCZV v Minister for Immigration [2006] FMCA 471
SZCZV v Minister for Immigration & Multicultural Affairs [2006] FCA 1002
SZCZV v Minister for Immigration & Multicultural Affairs [2007] HCATrans 179

Applicant: SZCZV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2327 of 2008

Judgment of: Smith FM

Hearing date: 14 October 2008

Delivered at: Sydney

Delivered on: 14 October 2008

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms K Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. 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.

2. The applicant must pay the first respondent’s costs in the sum of $1,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2327 of 2008

SZCZV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 8 September 2008, which seeks judicial review under s.476 of the Migration Act of a decision of the Refugee Review Tribunal which was made on 1 May 2000. The Tribunal affirmed a decision of a delegate, refusing to grant the applicant a protection visa.

2. The applicant has already sought judicial review of the same decision of the Refugee Review Tribunal, and his litigation has been unsuccessful.

3. He joined the Lie class action in 2000, and this proceeding eventually came to an end when it was dismissed by Emmett J in the Federal Court on 20 February 2004 (See Applicant S1174 of 2003 v Refugee Review Tribunal [2004] FCA 289).

4. The applicant then commenced a second application for judicial review in this Court, and his application was dismissed by Driver FM on

   
   5 April 2006

   (see SZCZV v Minister for Immigration [2006] FMCA 471). An appeal was dismissed by Finn J on 4 August 2006, after hearing submissions from an experienced migration lawyer on behalf of the applicant (see SZCZV v Minister for Immigration & Multicultural Affairs [2006] FCA 1002). The applicant sought special leave to appeal to the High Court, and this was refused by Gummow and Heydon JJ on 27 April 2007 (see SZCZV v Minister for Immigration & Multicultural Affairs [2007] HCATrans 179).

5. The applicant then made applications for discretionary intervention by the Minister, but they have been unsuccessful up to this time.

6. He has now commenced his present application, which was set down for hearing today on whether it raises an arguable case for the relief claimed.

7. The applicant has filed a number of documents.  They essentially argue with the merits of the Tribunal's decision about his refugee status, or make criticisms of its legality which have already been presented to the Courts.  However, the absence of jurisdictional error on the part of the Tribunal has already been judicially determined.

8. The applicant today also made a submission suggesting that he has new reasons for fearing to return to Pakistan. However, that is not a matter which can justify a second challenge to the 2000 decision of the Tribunal.

9. In my opinion, the present application is hopeless, and doomed to fail on principles of res judicata or Anshun estoppel. It may also be an abuse of process. I am not satisfied that it raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  23 October 2008