SZFTS v Minister for Immigration

[2007] FMCA 1630

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1630

MIGRATION – No point of principle – summary dismissal for abuse of process.

Migration Act 1958, s.424

SZFTS v Minister for Immigration [2006] FMCA 1254
SAAP v Minister for Immigration [2005] HCA 24
SZFTS v Minister for Immigration [2006] FCA 1639

Applicant: SZFTS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2541 of 2007

Judgment of: Raphael FM

Hearing date: 14 September 2007

Date of last submission: 14 September 2007

Delivered at: Sydney

Delivered on: 14 September 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The substantive application is dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2541 of 2007

SZFTS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is the second occasion upon which this particular applicant who claims to be a citizen of Sri Lanka has appeared before me.  In reasons for judgment handed down on 31 August 2006 (see SZFTS v Minister for Immigration [2006] FMCA 1254) I dismissed his application for judicial review of a decision of the Refugee Review Tribunal handed down on 1 February 2005. In the course of my judgment I made reference to certain documents including the applicant’s Sri Lankan passport which had been handed to the department and sent to the document inspection unit. In regard to those documents I said this (at [2]-[3]):

   “After the matter was referred to the Tribunal the applicant provided to it or the Department certain further documents.   These included a Sri Lankan passport issued on 25 May 1998, a Sri Lankan driving licence and a Sri Lankan identity card.  These were sent to the Document Examination Unit.  By the time the matter came before the Tribunal for hearing no decision as to the genuineness of any of these documents had been made and the Tribunal decided to proceed on the basis that the oral evidence of the applicant because it felt that it did not wish to wait for what it described as ‘an indeterminate time’ for the document examination unit to provide its report. 

   The applicant tells me that as of today he has not yet received his documents back.  This has prevented him from making an application in what he claims to be his own name for various benefits provided by the Government of Australia.  I do think that the usefulness of the Document Examination Unit has now been exhausted due to the decision of the Tribunal and it is only reasonable that the applicant’s documents be returned to him as soon as possible.”

2. Those words were said over a year ago.  The applicant appears before me today and advises me that the documents have not yet been returned to him.  I would urge that they are returned as soon as possible.  Perhaps an explanation could be given to the applicant as to why the delay has occurred; after all, they have been in the Department’s possession now for two years. 

3. I am today dealing with a notice of motion filed by the Minister seeking to strike out the applicant’s claim filed with this court on 17 August 2007 for judicial review of same Tribunal decision that I reviewed on 16 August 2006, which was the subject of an appeal to the Federal Court heard on 16 November 2006, and then the subject of an application for special leave to the High Court.  The applicant was unsuccessful in all of these endeavours.  The grounds upon which he now seeks a further review of the same decision is explained in his affidavit filed on 17 August 2007 and sworn on the 16 August 2007.  The applicant says:

   “[4] The decision made by the Tribunal falls within the application of High Court decision in the matter of SAAP where the court made new ruling about the definition of s424 of the Migration Act.

   [5] I would like to seek leave from this court to make this new line of argument on the basis that at the time of my matter before the court that decision of SAAP was not in force and therefore there was a miscarriage of justice.  I believe that it is important for the shake [sic] of natural justice that my application be allowed for filing with extension of time.”

4. The difficulty with this claim made by the applicant is that the decision in SAAP v Minister for Immigration [2005] HCA 24 was actually handed down by the High Court on 18 May 2005, a considerable time before the applicant’s hearing in my court and all the subsequent appeals. And whilst I confess that the words “SAAP” do not appear to fall from my lips in judgment they certainly fell from those of Jacobson J in the appeal of this matter (SZFTS v Minister for Immigration [2006] FCA 1639) who said at [13]:

   “The other grounds of appeal are not particularised, but the applicant expanded upon them in written submissions.  The applicant relies upon the decision of the High Court in SAAP v The Minister (2005) 215 ALR 162. The appellant submits that the effect of this decision is that the RRT, having made up its mind to dismiss the application, was required to provide that information to the appellant in order to comply with the provisions of s 424A of the Migration Act. I do not consider that this ground of appeal is made out.”

5. To the extent that the applicant may now have some other argument in relation to SAAP perhaps concerning actual documents he will be prevented from bringing that argument now by the dicta of the High Court in Port of Melbourne Authority v Anshun Pty Limited (No 2) (1981) 147 CLR 589. As it is, I am of the view that this current application is an abuse of the process of the course. A res judicata has occurred.  The decision which the applicant seeks to have reviewed has been reviewed and no fault in it has been found.  I accede to the Minister’s application and dismiss the substantive application by the applicant.  I order that the applicant pay the Minister’s costs which I assess in the sum of $1500.00.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  27 September 2007