SZERD v Minister for Immigration & Anor

[2008] FMCA 683

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERD v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 683

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a decision of a delegate of the Minister not to grant the applicants protection visas.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process – where the decision of the Refugee Review Tribunal has been previously the subject of judicial review – where application has no reasonable prospects of success.

Federal Magistrates Court Rules 2001, r.13.10

NAZY v Minister for Immigration & Multicultural Affairs (2005) FCA 744 Plaintiff S157 (2002) v Minister for Immigration & Multicultural & Indigenous Affairs (2003) HCA 2
SZERD v Minister for Immigration & Multicultural Affairs (2006) FCA 560
SZERD and Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2008) HCA SL 111
SZERD & Anor v Minister for Immigration & Anor (2006) FMCA 15

Applicant: SZERD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 955 of 2008

Judgment of: Scarlett FM

Hearing date: 12 May 2008

Date of Last Submission: 12 May 2008

Delivered at: Sydney

Delivered on: 12 May 2008

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The Application is summarily dismissed under Rule 13.109(a) of the Federal Magistrates Court Rules 2001 as the applicants have no reasonable prospects of successfully prosecuting the claim.

2. The applicant is summarily dismissed under rule 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of the Court process.

3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1000.00.

4. No further application for review if decision of the Refugee Review Tribunal signed 27 September 2004 and handed down on 20 October 2004 is to be accepted for filing without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 955 of 2008

SZERD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The lawyers for the Minister for Immigration & Citizenship are asking the Court to make an order summarily dismissing the application by the two applicants for review of a decision of the Refugee Review Tribunal.  The decision was signed on 27 September 2004 and handed down on 20 October in that year affirming the decision not to grant protection visas to the two applicants.  The Minister asks the Court for orders for summary jurisdiction and relies on the following, and in particular seeks these orders. 

   i)There have been other judicial review proceedings in relation to the decision and the applicants have failed to disclose the existence for all of those proceedings.

   ii)No reasonable cause of action is disclosed in relation to these proceedings.

   iii)The proceedings or claim for relief is frivolous or vexatious.

   iv)The proceeding or claim for relief is an abuse of the process of the Court.

2. The Minister also asks the Court for an order directing that the registry should not accept any further application for review of the Refugee Review Tribunal or for review of the decision of the delegate of the Minister or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa on 9 January 2004 without prior leave of a Federal Magistrate.

3. The applicants are citizens of Nepal.  The first applicant is a retired army officer who had served in the Indian Army.  He had claimed that this was a factor that had made it more likely that he would be persecuted by the Maoists in Nepal.  He expresses serious concerns about the situation that currently exists in Nepal and has even told the Court that he has contemplated suicide.  That of course would be a most regrettable thing to occur.

4. The unfortunate fact is that the Court is not able to consider a change of circumstances or deteriorating circumstances in a person's native country.  The Court does not have the power under the Migration Act to consider, and keep on for further consideration, reviews of the same decision of the Refugee Review Tribunal.  The history of the litigation by the applicants is set out in an affidavit of Zoe McDonald, solicitor, affirmed on 30 April 2008. 

5. After the applicants have been unsuccessful before the Refugee Review Tribunal they filed an application in this Court on 8 November 2004 seeking judicial review of that decision.  On 8 December 2005, Lloyd‑Jones FM heard that application and on 27 January 2006 his Honour handed down a decision dismissing the application for review with costs[1].    The applicants then on 13 February 2006 filed a notice of appeal in the Federal Court of Australia.  On 12 May 2006 Edmonds J, exercising the jurisdiction of the Full Court of the Federal Court, dismissed the appeal with costs[2]. 

   [1] See SZERD and Anor v Minister for Immigration and Anor (2006) FMCA 15.

   [2] See SZERD v Minister for Immigration & Multicultural Affairs (2006) FCA 560. 

6. The applicants then on 1 June 2006 sought special leave to appeal to the High Court of Australia.  On 27 March 2008 Hayne and Crennan JJ dismissed the application for special leave to appeal with costs[3].  The applicants then on 17 April 2008 commenced these proceedings in this Court.

   [3] See SZERD and Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2008) HCA SL 111. 

7. The application to this Court sets out a number of grounds: 

   (i)denial of natural justice; 

   (ii)apprehension of bias; 

   (iii)failure to follow procedural fairness; 

   (iv)failure to comply with s 424A of the Migration Act; 

   (v)exceeding the Tribunal's jurisdiction - or failing to exercise the jurisdiction by asking itself the wrong question; 

   (vi)ignoring the technical issues of the applicants' claim; 

   (vii)finally, the applicants refer decisions of NAZY v Minister for Immigration & Multicultural Affairs (2005) FCA 744; and to Plaintiff S157 (2002) v Minister for Immigration & Multicultural & Indigenous Affairs (2003) HCA 2.

8. I have read the decision of Lloyd-Jones FM which was handed down on 27 January 2006. In that decision his Honour referred to the grounds that were argued which included:

   (i)Denial of natural justice.

   (ii)Bias.

   (iii)Failing to provide procedural fairness.

   (iv)What appears to be a failure to send a copy of certain documents of the applicants to comment on prior to the hearing.

   (v)Ignoring the reality of statistics.

   (vi)Wrongly weighing and judging the applicants' claim.

9. His Honour also referred to an amended application in which his Honour described as follows:

   However, the amended application alleged a denial of natural justice;  bias and apprehended bias;  failure to disclose the particular construction the tribunal gave to information from different independent sources;  s 424A;  denial of procedural fairness;  and a contention that internal relocation was not an option for the applicants[4].

   [4] See SZERD v Minister for Immigration at paragraph 9. 

10. I note then that the decision of Plaintiff S157 of 2002 v Commonwealth of Australia is also referred to.  The fact is that the application before the Court in the substantive proceedings is essentially identical to the application heard and decided by Lloyd-Jones FM.  There is nothing further to hear.  The application clearly has no reasonable prospects of success and it is regrettably an abuse of the Court's process. 

11. Accordingly it must be dismissed with costs and I do propose to make an order restraining the registry from accepting any further applications for review of a decision of the Refugee Review Tribunal that is under review. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  2 June 2008