SZFTJ v Minister for Immigration & Anor
[2008] FMCA 688
•12 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFTJ v MINISTER FOR IMMMIGRATION & ANOR | [2008] FMCA 688 |
| 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 – application dismissed. |
| Federal Magistrates Court Rules 2001, r.13.10 |
| SZFTJ v Minister for Immigration & Anor (2007) FMCA 543 SZFTJ v Minister for Immigration (2007) FCA 1193 SZFTJ v Minister for Immigration & Anor (2008) HCASL 45 |
| Applicant: | SZFTJ |
| Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 917 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 Respondent: | Sparke Helmore |
ORDERS
The Application is summarily dismissed under Rule 13.10(a) of the Federal Magistrate Court Rules 2001 as the applicant has no reasonable prospect of successfully prosecuting a claim.
In the alternative, the Application is summarily dismissed under Rule 13.10(c) of the Federal Magistrates Court Rules 2001 on the ground that the application is an abuse of the Court process.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 917 of 2008
| SZFTJ |
Applicant
And
| MINISTER FOR IMMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The lawyers for the first respondent, the Minister for Immigration and Citizenship ask the court for an order summarily dismissing the applicant’s application for review of a decision of the Refugee Review Tribunal.
The Tribunal signed its discussion on 14 September 2006 and handed that decision down on 26 September 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (class XA) visa. The applicant commenced proceedings on 15 April 2008 and his application contains three grounds:
i)The Tribunal failed to consider my well-founded fear of persecution for my religious belief that Buddhists are subject to general discrimination amounting to persecution in Bangladesh. The Tribunal failed to believe that I had a leadership position and I suffered any harm amounting to persecution. The Tribunal considered my evidence is vague and refused my application without further investigation regarding my claimed persecution for my religious belief and made errors of jurisdiction.
ii)The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to give me any opportunity to give oral evidence in support of my claims prior to coming to its decision. The Tribunal fell into jurisdictional error.
iii)The Tribunal failed to consider the documents I provided in support of my claims and the Tribunal refused my claim on the ground that I do not have a well-founded fear of persecution within the meaning of the convention, though I substantiated my claims with credible documents. The Tribunal did not accept me as a credible witness. The Tribunal fell into errors of jurisdiction, denying me natural justice in determining my review application.
iv)The Tribunal also failed to consider that my wife was attacked by my persecutors on the ground of my failure to bring her with me in Australia. Also the Tribunal accepted that I suffered persecution over a number of years but these were not serious enough to drive me out of the country. The tribunal failed to consider the weight of my persecution prior to coming to its decision and made errors of jurisdiction.
Those are the grounds upon which the applicant relies. He sets out a history in his affidavit of his prior litigation. He has told the court today that if he is given another chance, then he could start again in the Refugee Tribunal. He told the court that he was not able to return to Bangladesh because of the situation in that country.
The Minister for Immigration and Citizenship asked for summary dismissal on the grounds that:
i)The application does not raise an arguable case for the relief claims;
ii)That the applicant has instituted other judicial proceedings in relation to the decision and that those previous applications have been dismissed.
The Minister claims that this proceeding is frivolous or vexatious and is an abuse of process. The Minister relies on the doctrines of res judicata, issue estoppel and Anshun estoppel.
A history of the relevant events can be found in an affidavit of Nicola Johnson, solicitor, sworn on 23 April 2008 and filed in this court.
On 22 April 2004 the applicant lodged an application for a protection (class XA) visa.
On 25 June 2004 a delegate of the Minister refused to grant the applicant a protection visa.
On 15 July 2004 the applicant lodged an application for review of that decision with the Refugee Review Tribunal.
On 25 January 2005 the Refugee Review Tribunal handed down a decision affirming the decision of the delegate.
On 22 February 2005 the applicant filed an application for judicial review in the Federal Magistrates Court.
On 6 June 2006 Emmett FM made orders by consent remitting the matter to the Refugee Review Tribunal.
On 26 September 2006 the Refugee Review Tribunal handed down a decision, which is the decision subject of these proceedings, affirming the decision of the delegate.
On 23 October 2006 the applicant filed an application for judicial review in the Federal Magistrates Court.
On 26 March 2007 the application came before me and I dismissed that application with costs[1]
[1] SZFTJ v Minister for Immigration & Anor (2007) FMCA 543
On 12 April 2007 the applicant filed a notice of appeal against that decision.
On 7 August 2007 in the Federal Court Middleton J dismissed the appeal with costs[2]
[2] SZFTJ v Minister for Immigration (2007) FCA 1193
The applicant then on 30 August 2007 filed an application for special leave to appeal to the High Court of Australia.
On 27 March 2008 in the High Court of Australia Kirby and Heydon JJ dismissed the application for special leave to appeal[3].
[3] SZFTJ v Minister for Immigration &Anor (2008) HCASL 45
The applicant then on 15 April 2008 commenced proceedings in this court.
The fact is that the application for review of the decision of the Refugee Review Tribunal has been heard, has been dismissed and these proceedings are nothing more than an attempt to relitigated a matter which has already been decided. It is quite clearly an abuse of process and quite clearly the applicant has no reasonable prospects of success.
Accordingly the application will be dismissed and I make the following order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date:
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