SZDBT v Minister for Immigration & Anor

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDBT v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 923

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 – applicant is a citizen of Bangladesh.

PRACTICE & PROCEDURE – Application is an abuse of process – where applicant brings a second application to the Tribunal for review of a decision of a delegate – summary dismissal – out of time.

Migration Act 1958 (Cth), ss.412, 477

SZDBT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 514
SZDBT v Minister for Immigration & Anor [2005] FMCA 1802

Applicant:

SZDBT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1137 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:

Ms Mafessanti

Solicitors for the Respondents:

Clayton Utz

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 $2,000.00.
No further application for review of any decision of the Refugee Review Tribunal concerning this applicant is to be filed without leave of a Federal Magistrate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1137 of 2007

SZDBT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

This is another application to review a decision of the Refugee Review Tribunal (“the Tribunal”) finding that it did not have jurisdiction.

I have earlier today made comments on this particular scheme whereby an applicant applies to the Minister for a protection visa, when the application is unsuccessful, seeks judicial review, and when that process is exhausted brings a further application to the Refugee Review Tribunal to review the delegate’s decision again. This is a particularly egregious example of that particular scam because scam it most definitely is.
The Minister relies on the affidavit of Richard John Baird, paralegal, sworn on 20^th April 2007. That affidavit contains a chronology of the litigation history, which I will summarise.
On the 20^th May 2000 the Tribunal made the decision that is the subject of these proceedings, on the 29th June the applicant applied for judicial review of that decision. That application was discontinued in the Federal Court on 6^th March 2001, subject to a notice of discontinuance and on 12^th March 2001 Katz J in that Court dismissed the application.
The applicant then applied for judicial review of the Tribunal’s decision in this Court. That application was brought on the

19^th March 2004 and dismissed by Smith FM on the 7^th March 2005. The applicant then appealed against that decision on 24^th March 2005.
On the 27^th April, Wilcox J dismissed the appeal, the citation to that is SZDBT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 514. The applicant then sought special leave to appeal to the High Court of Australia, that application was dismissed on the 30^th of August 2005 by McHugh and Hayden JJ.
The applicant then decided to seek a review in this Court again on

12^th September 2005. On 5^th December that year in the Federal Magistrates Court, Driver FM dismissed that application on a summary basis as incompetent and made orders that no further application to review the decision of the Tribunal or the decision of the delegate was to be accepted for filing at the Court except by leave of the Court.

The citation to that decision is SZDBT v Minister for Immigration & Anor [2005] FMCA 1802.
The applicant since proceeded to lodge an application in this Court on 5^th April 2007. This is a blatant abuse of process. There is no jurisdictional error and the application is totally devoid of merit.
The application will be dismissed with costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 12 June 2007

CaseChat Overview and Summary

In the case of SZDBT v Minister for Immigration & Anor, the applicant, a citizen of Bangladesh, sought review of a decision by the Refugee Review Tribunal (RRT) that upheld a decision of a delegate of the Minister for Immigration not to grant the applicant a protection visa. The application for review was brought before the court, which considered it to be an abuse of process due to the applicant's submission of a second application outside the stipulated timeframe. The primary legal issue before the court was whether the second application was permissible under the Migration Act and whether it should be summarily dismissed. Additionally, the court had to consider the appropriate costs and whether to impose any further restrictions on the applicant's right to file additional applications without leave.

The court found that the second application was an abuse of process, as it was submitted beyond the allowable period and was effectively a duplicate of an earlier application that had already been determined. The court emphasised that such conduct could undermine the integrity of the immigration review process. Furthermore, the court considered the nature and circumstances of the applicant's previous application, which had already been decided by the RRT, and concluded that there were no exceptional circumstances that would warrant a departure from the usual rules regarding timeliness and process. The court also noted that the applicant's conduct was deliberate and repeated, which strengthened the case for imposing penalties and restrictions.

Consequently, the court dismissed the application as an abuse of process. It ordered the applicant to pay the costs of the first respondent, fixed at $2,000.00. Furthermore, the court ruled that any future application for review concerning this applicant must be filed with the leave of a Federal Magistrate, thereby imposing a stringent requirement on the applicant to seek permission before proceeding with any further applications. This decision underscores the court's commitment to enforcing procedural rules and maintaining the efficiency and fairness of the immigration review process.

Orders of the court

The application is dismissed as an abuse of process.

The applicant is to pay the first respondent’s costs fixed in the sum of $2,000.00.

No further application for review of any decision of the Refugee Review Tribunal concerning this applicant is to be filed without leave of a Federal Magistrate.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established