SZGIZ v Minister for Immigration

[2007] FMCA 1175

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGIZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1175

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

SZDMO v Minister for Immigration [2006] FCA 989
SZGIZ v Minister for Immigration [2005] FMCA 1144
SZGIZ v Minister for Immigration [2005] FCA 1739
SZGIZ v Minister for Immigration [2006] HCA 371

Applicant: SZGIZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2052 of 2007

Judgment of: Driver FM

Hearing date: 20 July 2007

Delivered at: Sydney

Delivered on: 20 July 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms T Quinn
DLA Phillips Fox

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.

2. The application is dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,500.

4. The Court directs that no further application by this applicant to review any decision under the Migration Act 1958 (Cth) relating to his protection visa application made on 11 March 2005, the decision of the delegate on that application, or any decision of the Refugee Review Tribunal relating to the delegate’s decision, or any notification of such decisions be accepted for filing in this Court without the leave of a Federal Magistrate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2052 of 2007

SZGIZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application made under the Migration Act1958 (Cth) seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The application is supported by an affidavit which annexes a copy of the Tribunal decision. The Tribunal decision was signed on 12 June 2007. As a decision on the Tribunal's jurisdiction, I understand it was not required to be handed down. The application filed on 3 July 2007 was clearly filed within time.

2. The Minister responded to the application on 17 July 2007.  The Minister opposes the orders sought by the applicant on the basis that no reasonable cause of action was shown.  It was apparent on the face of the material already before the Court that the application was likely to fail.  For that reason I ordered an immediate show cause hearing this morning. 

3. The Tribunal decision records that the applicant applied for a protection visa on 11 March 2005.  The delegate of the Minister refused that application on 18 March 2005.  The applicant sought review of that decision by the Tribunal on 21 March 2005.  The Tribunal affirmed the delegate's decision on 22 April 2005.  The applicant unsuccessfully sought judicial review of the Tribunal's decision in this Court[1] and unsuccessfully appealed against the decision of this Court[2].  The High Court rejected an application for special leave to appeal[3].  The applicant then lodged a second review application with the Tribunal on 8 May 2007.  That application was a patent abuse of the Tribunal's process.  The Tribunal had exhausted its statutory function in validly reviewing the delegate's decision in 2005.  There was nothing further the Tribunal could do. 

   [1] SZGIZ v Minister for Immigration [2005] FMCA 1144

   [2] SZGIZ v Minister for Immigration [2005] FCA 1739

   [3] SZGIZ v Minister for Immigration [2006] HCA 371

4. The Tribunal correctly found on the basis of authority referred to in its decision that it was functus officio.  The application before the Court is an abuse of this Court's process.  There is no possibility of a successful outcome for the applicant.  This position has been stated in this Court and in the Federal Court repeatedly[4]. 

   [4] see for example SZDMO v Minister for Immigration [2006] FCA 989

5. I order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

6. Having found the application to be an abuse of process, the applicant should bear the Minister's costs of it on an indemnity basis.  The Minister's actual costs are $1,500.  The applicant did not wish to be heard on costs. 

7. I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,500.

8. The Minister should not be continuously vexed by applications of this nature. The Court should also do what it can to prevent further applications of this nature coming before the Court without leave. I order that no further application by this applicant to review any decision under the Migration Act relating to his protection visa application made on 11 March 2005, the decision of the Delegate on that application or any decision of the Refugee Review Tribunal relating to the delegate's decision or any notification of such decisions be accepted for filing in this Court without the leave of a Federal Magistrate.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  25 July 2007