SZEOX v Minister for Immigration & Anor
[2007] FMCA 968
•1 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 968 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision that it had no jurisdiction. PRACTICE & PROCEDURE – Application an abuse of process – where applicant made a further application to the Refugee Review Tribunal for review of the decision of a delegate. |
| Migration Act 1958 (Cth), s.412 |
| Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) CLR 343 SZEOX v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] SZEOX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 672 SZEOX v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2007] HCA 11 |
| Applicant: | SZEOX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1365 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 June 2007 |
| Date of Last Submission: | 1 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| 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 $2,300.00.
The applicant is restrained from filing any further application for review of the decision of the RRT handed down on 21 September 2004 and on 10 April 2007 is to be accepted for filing at any Registry of this Court without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1365 of 2007
| SZEOX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The application before the Court is an application by the first respondent Minister. The Minister seeks orders dismissing the applicant’s substantive application which is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) that was signed on 4th April 2007. The Tribunal’s decision was that it did not have jurisdiction in the matter. The reason why the Tribunal formed the view that it did not have jurisdiction was because it had already reviewed the decision of the delegate in that particular matter.
Indeed the Tribunal noted that the applicant had unsuccessfully sought judicial review of the Tribunal’s decision in the Federal Magistrates Court, (see SZEOX v Minister for Immigration & Multicultural & Indigenous Affairs & Another [2005] FMCA (1803) in the Federal Court exercising the appellant jurisdiction of the Full Court of the Federal Court, (see SZEOX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 672) and the applicant had also sought special leave to appeal to the High Court of Australia, (see SZEOX v Minister for Immigration & Multicultural & Indigenous Affairs & Another [2007] HCA 11).
The applicant told the Court that if he were to return to his home country in Bangladesh he would be persecuted. The Minister relies on two affidavits, each sworn by Miriam Mafessanti, solicitor, on 16th and 23rd May 2007 and an outline of submissions. The written outline of submissions contains a very useful chronology. The circumstances are that the applicant arrived in Australia on 26th April 2001. He applied for a protection visa on 2nd May in that year. That application was refused on 3rd May 2001 and on 23rd May in that year the applicant applied for a review of that decision with the Refugee Review Tribunal.
On 1st July 2003 the Refugee Review Tribunal handed down its decision affirming the decision of the delegate not to grant the applicant a protection visa. The applicant then sought judicial review of that decision in the Federal Magistrates Court. An order was made by consent on 1st April 2004 setting aside the Tribunal decision and remitting the applicant to the Refugee Review Tribunal.
On 21st September 2004 the Tribunal, differently constituted, handed down its decision affirming the decision of the Delegate not to grant the applicant a protection visa. On 18th October 2004 the applicant filed an application for judicial review of that decision in the Federal Magistrates Court. On 16th December 2005 his Honour Federal Magistrate Lloyd-Jones handed down a decision dismissing the application for costs. The citation to that decision is SZEOX v Minister for Immigration (supra).
On 30th December 2005 the applicant appealed against the Federal Magistrate’s decision. The appeal was dismissed on 31st May 2006. The citation of that decision is SZEOX v The Minister for Immigration & Multicultural & Indigenous Affairs (Supra). On 27th June 2006 the applicant filed an application for special leave in the High Court of Australia. On 31st January 2007 Kirby, Callinan JJ dismissed the application for special leave to appeal. Citation to that decision is [2007] HCA Trans 11.
Undeterred by the string of rejections the applicant then on
21st February 2007 applied to the Refugee Review Tribunal for a review of the original delegate’s decision. The Tribunal wrote to the applicant on 7th March inviting him to comment, which the applicant did on 30th March. The Tribunal considered the applicant’s submission and noted on page 3 of the decision:
While changed circumstances can be a basis on which the Minister might permit lodgement of a second protection visa application under s. 48B of the Act, it does not provide any legal basis for the Tribunal to accept a second review application or to reconsider the delegate’s decision. See Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30]; Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7].
The Tribunal noted that as it had already discharged its functions under the Migration Act to review the delegate’s decision of 3rd May 2001 it no longer had jurisdiction in relation to that decision. The applicant, however, commenced proceedings in this Court on 30th April 2007 seeking judicial review. At the request of the solicitors for the Minister I listed the application today for a show cause hearing. It is not a procedure that I consider necessary to adopt in every case, or indeed in many cases, but in my view the circumstances of this case justify the use of the show cause procedure.
The application for a second review by the Refugee Review Tribunal of the delegate’s decision was an application entirely without merit or jurisdiction. The application for review of the decision of the Refugee Review Tribunal is an application entirely without merit. It is an abuse of the Court’s process. It is clear that these repeated proceedings have been commenced for an ulterior motive, namely to provide some sort of a foundation however spurious, for the issue or continuation of a bridging visa.
The Court has no power in respect of bridging visas but it may be said that the Minister may need to consider the appropriateness of a continuation of a visa issued purely on the basis of spurious proceedings commenced in this Court purely designed not so much to re-litigate a case that has already been litigated to finality but to provide some sort of a basis for the issue of a visa. It is without doubt an abuse of process. The application will be dismissed and it is a matter where it will be dismissed with costs.
This is a matter for costs. The abuse of the Court’s process is a matter that the Court will not tolerate. I propose to make an order also restraining the applicant from commencing any further proceedings for review of either of the decisions of the Refugee Review Tribunal without leave of the Court.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 7 June 2007