SZFBO v Minister for Immigration

[2008] FMCA 778

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBO v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 778

MIGRATION – RRT decision – previous unsuccessful application for judicial review – no arguable case to avoid estoppels – application dismissed at first court date.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

SZFBO v Minister for Immigration & Multicultural Affairs [2008] HCATrans 170
SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291
SZFBO v Minister for Immigration & Anor [2005] FMCA 1788

Applicant: SZFBO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1211 of 2008

Judgment of: Smith FM

Hearing date: 3 June 2008

Delivered at: Sydney

Delivered on: 3 June 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms N Tondl

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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 $1,200. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1211 of 2008

SZFBO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 13 May 2008, in which the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 6 October 2004 and handed down on 28 October 2004.  The Tribunal affirmed the decision of a delegate refusing to grant a protection visa to the applicant. 

2. The applicant has already obtained judicial review of the decision of the Tribunal. Nicholls FM extensively reviewed the decision, to consider whether it was affected by jurisdictional error, and dismissed the application (see SZFBO v Minister for Immigration & Anor [2005] FMCA 1788). His judgment was upheld on appeal by Emmett J (see SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291). The applicant gained legal representation to present orally a special leave application to the High Court, but this was unsuccessful (see SZFBO v Minister for Immigration & Multicultural Affairs [2008] HCATrans 170).

3. He has now brought a second application which raises grounds which, in my opinion, if not previously addressed, should have been raised by the applicant in his previous litigation.  He has not put forward any reason why he should be allowed to raise new arguments in a fresh application. 

4. His arguments to me today, were that he wishes to bring his new application due to recent events in Nepal, in which the Maoists are now in government.  However, this Court would have no power to consider his new refugee claims.  

5. The applicant has been put on notice by the Minister that the Court would be asked to dismiss his application summarily today at the first court date.  In my opinion, it is appropriate to do that.  I prefer to base my decision on the ground that the application has not raised an arguable case for the relief claimed, because the applicant has shown no arguable answer to principles of Anshun estoppel and res judicata, which he would face due to the previous judicial conclusions that the Tribunal’s decision was unaffected by jurisdictional error. 

6. I therefore shall dismiss the application under r.44.12(1)(a).

7. The Minister also sought summary dismissal on the ground that the application is an abuse of process.  There is some substance in that contention, and I have today explained to the applicant that he must accept the finality of his previous course of litigation. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  13 June 2008