FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1354 |
| MIGRATION – RRT decision – second application to Tribunal after unsuccessful judicial review litigation – no arguable case – application dismissed at a show‑cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) |
| Applicant: | SZEYK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2002 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 12 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
Direct that no further application for review of the decisions of the Refugee Review Tribunal handed down on 27 October 2005 or 8 July 2008, or for review of the decision of the delegate of the first respondent dated 14 August 2003, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa received on 25 June 1996, shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2002 of 2008
| SZEYK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 4 August 2008, in which the applicant seeks, in effect, an order by way of mandamus to compel the Refugee Review Tribunal to conduct a second review of a decision made by a delegate of the Minister. The delegate’s decision was made on 14 August 2003, and refused to grant a protection visa to the applicant.
The applicant earlier applied for review of the delegate’s decision, and his application to the Refugee Review Tribunal was decided in a decision handed down on 27 October 2005. The Tribunal affirmed the delegate’s decision, and the validity of its decision has been upheld by this Court, the Federal Court, and the High Court (see SZEYK v Minister for Immigration & Anor [2006] FMCA 1473; SZEYK v Minister for Immigration & Citizenship [2007] FCA 133; and SZEYK v Minister for Immigration & Citizenship & Anor [2007] HCATrans 640).
The applicant then commenced a second round of litigation challenging the Tribunal’s decision, in which his application was dismissed as an abuse of process (see SZEYK v Minister for Immigration & Anor [2007] FMCA 2095; SZEYK v Minister for Immigration & Citizenship [2008] FCA 70; and SZEYK v Minister for Immigration and Citizenship & Anor [2008] HCASL 378).
The applicant then followed a familiar path of making a second application to the Tribunal. In a decision dated 7 July 2008, the Tribunal held that it did not have jurisdiction to conduct a second review of the delegate’s decision. It is this decision, which is the subject matter of the present application.
In its reasons, the Tribunal referred to well known authority which establishes that it does not have jurisdiction to review a delegate’s decision twice. That line of cases has recently been followed by Cowdroy J in SZCKX v Minister for Immigration & Citizenship [2008] FCA 526 and Moore J in SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175.
In my opinion, the applicant’s present application is plainly hopeless, and I propose to dismiss it today under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant’s submissions today attempted to persuade me to allow him to re‑litigate in this Court, or before the Tribunal, an argument concerning the validity of the first Tribunal’s decision which was previously put by his counsel to Scarlett FM and on appeal. He plainly does not understand the need for finality in his litigation. In my opinion, it is appropriate for me to direct the Registry not to receive any further applications relating to his protection visa application without first obtaining the leave of the Court.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 30 September 2008
- AGLC
- SZEYK v Minister for Immigration & Anor [2008] FMCA 1354
- Case
- [2008] FMCA 1354
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the application raised an arguable case for the relief claimed. Specifically, the court had to assess the validity of the administrative decisions made regarding the applicant's visa application, which had been refused on multiple occasions. The court also had to decide on the appropriate costs and any further applications for review.
In delivering the judgment, the court found that the application did not raise an arguable case for the relief claimed. The court was not satisfied that the applicant had presented sufficient grounds to warrant a review of the previous decisions. Consequently, the application was dismissed under the relevant rule of the Federal Court. Additionally, the court ordered that the applicant pay the costs incurred by the first respondent and restricted any further applications for review without prior leave of the Court.
The court's orders were that the application be dismissed, the applicant pay costs of $2,500 to the first respondent, and that no further applications for review of specified decisions be accepted without prior leave of the Court.
Orders
Orders of the court
1.
The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
2.
The applicant must pay the first respondent’s costs in the sum of $2,500.
3.
Direct that no further application for review of the decisions of the Refugee Review Tribunal handed down on 27 October 2005 or 8 July 2008, or for review of the decision of the delegate of the first respondent dated 14 August 2003, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa received on 25 June 1996, shall be accepted for filing without prior leave of the Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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