SZDVN v Minister for Immigration

[2007] FMCA 774

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDVN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 774

MIGRATION – Review of decision of RRT – summary dismissal where no reasonable prospect of success.

Migration Act 1958, s.48A, 48B

Federal Magistrates Court Rules 2001, Part 13 r13.10(a)

Applicant: SZDVN

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

REFUGEE REVIEW TRIBUNAL

File number: SYG557 of 2007

Judgment of: Raphael FM

Hearing date: 2 May 2007

Date of last submission: 2 May 2007

Delivered at: Sydney

Delivered on: 2 May 2007

REPRESENTATION

For the Applicant: Applicant in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules 2001. 

2. No further application by the applicant to review:

   (a)the decision of the Refugee Review Tribunal handed down on 25 May 2004;

   (b)the decision of the Refugee Review Tribunal handed down on 5 February 2007 (made on 2 February 2007);

   (c)the decision of the delegate made on 4 November 2003,

   shall be accepted for filing except with leave of the court. 

3. The applicant pay the first respondent’s costs assessed in the sum of $1,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 557 of 2007

SZDVN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me a notice of motion filed on behalf of the respondent that the application for judicial review filed in this court on 19 February 2007 be dismissed on the grounds that (a) the applicant has no reasonable prospects of successfully prosecuting the proceedings (Part 13 Rule 13.10(a) Federal Magistrates Court Rules 2001 (the “Rules”), (b) the proceedings are frivolous and vexatious (Part 13 Rule 13.10(b) of the Rules) and (c) the proceedings are an abuse of process (Part 13 Rule 13.10(c) of the Rules). There is also a request that no further application by the applicant to review the decision of the Refugee Review Tribunal made on 2 February 2007 be accepted for filing except with the leave of the court.

2. In her affidavit of 2 April 2007 Nicola Johnson, a solicitor employed by the solicitors for the respondent, sets out a chronology and some supporting documents. The chronology tells the familiar tale of an application which has gone through the entire process from delegate to the High Court before a new application to the Tribunal to review the decision of the delegate originally made was submitted. True it is that the applicant put forward some additional grounds for claiming he was a person to whom Australia owed protection obligations that were not before the delegate or the original Tribunal, but that would not avail him. If the applicant wished to raise additional grounds he would be obliged to seek the approval of the Minister under s.48B of the Migration Act 1958 (the “Act”) to make another application for a protection visa and thus avoid the problems contained in s.48A.

3. As it was the Tribunal rightly indicated that it had no jurisdiction to hear the application for review because it had already done so and was functus.  It further noted that in any event this new application is some three years out of time and that there was no ability in the Tribunal to extend time.

4. Nothing which the applicant has told me today, being a submission that the application to the Tribunal was to review new information, convinces me that there are any prospects of success if this matter went to a full hearing. I would therefore propose to dismiss the application pursuant to Part 13 Rule 13.10(a) of the Rules on the grounds that the claim for relief has no reasonable prospect of success. In doing this I would note that there is certainly an argument that the application is also an abuse of process. However, it is not as clear an abuse as those many applications which come before this court to review again a decision of the Tribunal that has itself been reviewed all the way up to the High Court. The decision that is under review today has not been reviewed before.

5. The respondent asks for an order for indemnity costs against the applicant.  I am disinclined to make such an order because the applicant is exercising his rights to seek review of a decision of the Tribunal not previously reviewed.  I will, however, make an order that no further application by the applicant to review:

   (a)the decision of the Refugee Review Tribunal handed down on 25 May 2004;

   (b)the decision of the Refugee Review Tribunal handed down on 5 February 2007 (made on 2 February 2007);

   (c)the decision of the delegate made on 4 November 2003 in respect to this applicant,

   be accepted for filing except with leave of the court.  I order that the applicant pay the respondent’s costs which I assess in the sum of $1,750.00.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: