SZDWJ v Minister for Immigration

[2007] FMCA 230

0FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDWJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 230

MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal – where applicant has previously applied for review – res judicata – Anshun estoppel – jurisdiction.

PRACTICE & PROCEDURE – Abuse of process – where applicant has previously applied for judicial review of the same decision – jurisdiction – where application is out of time.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1977 (Cth) s.477

SZDWJ v Minister for Immigration & Anor [2006] FMCA 103
SZDWJ v Minister for Immigration & Multicultural &Indigenous Affairs [2006] FCA 688
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 referred to
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to.

Applicant: SZDWJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 30 of 2007

Judgment of: Scarlett FM

Hearing date: 19 February 2007

Date of Last Submission: 19 February 2007

Delivered at: Sydney

Delivered on: 19 February 2007

REPRESENTATION

Solicitors for the Applicant: Mr Prince

Solicitor for the Respondent: Ms Kantaria

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application is dismissed

2. The Applicant is to pay the First Respondent's costs fixed in the sum of $1,000.00.

3. The Applicant is restrained from filing any application for review of the decision of the Refugee Review Tribunal signed on 28 April 2004 and handed down on 21 May 2004 without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 30 of 2007

SZDWJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application that is entirely without any merit whatsoever.  The Applicant is asking the Court to review a decision of the Refugee Review Tribunal that was made on 28 April 2004. It has been reviewed.

2. The Applicant was notified of the decision on 21 May 2004, as he has told the Court. The decision has been reviewed by the Federal Magistrates Court and Smith FM dismissed the application.  I would be surprised if the date given in paragraph 5 of the affidavit of Svetlana Zarucki is correct in that the affidavit says that the application was dismissed on 1 January 2006.  I would be surprised if his Honour's dedication to work actually extended to sitting on New Year's Day.  I am more prepared to believe the date of 19 January 2006 that appears on the copy of his Honour's decision.

3. The Applicant appealed against the decision of his Honour on

   
   

   6 February 2006 to the Federal Court. On 11 May 2006 French J dismissed the appeal.  A copy of his Honour's decision, the citation to which is SZDWJ v Minister for Immigration & Multicultural &Indigenous Affairs [2006] FCA 688, is annexed to Ms Zarucki's affidavit.

4. Undaunted by these rejections the Applicant then filed an application for special leave to appear in the High Court of Australia on 5 June 2006.  That application was dismissed on 14 December 2006 by their Honours, Hayne and Crennan JJ.  What the Applicant has then done was to start again.

5. Apart from the fact that the matter has already been heard and appealed and dismissed, apart from the fact that it is out of jurisdiction, the application is quite clearly an abuse of the Court process.

6. The Applicant claims in his affidavit that the decision by the Refugee Review Tribunal now falls within the application of the High Court decision in the matter of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. He says in his affidavit, although the matter was heard by the Court once already, that  the decision of SAAP was in force when the matter was in the Federal Magistrates Court and he could not make the argument. That submission is just nonsense.  It is just not correct.

7. It was quite open to the Applicant to rely on the decision of the High Court of Australia in SAAP when the matter was heard by Smith FM on 19 January 2006.  To suggest otherwise is just a ridiculous distortion of the truth.

8. In any event, even if the application was within time, which is it not, even if it was not a question of res judicata, which it is, then an Anshun estoppel[1] would apply. The fact is that this application is entirely without merit. It is an abuse of process of the Court.  It will be dismissed with costs. I propose to make an order restraining the Applicant from commencing any other proceedings in the Federal Magistrates Court for review of the decision of the Refugee Review Tribunal.

   [1] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

9. There is an application for costs in the sum of $1,000.00.  In my view that is an appropriate figure and certainly there would be justification for entertaining an application for costs to be entered on an indemnity basis.

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

Associate:  V. Lee

Date:  1 March 2007