SZGLA v Minister for Immigration & Anor - [2008] FMCA 144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGLA v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 144

MIGRATION – Visa – protection visa – application for review of a decision of the Refugee Review Tribunal.

PRACTICE & PROCEDURE – summary dismissal – abuse of process – previous application for judicial review.

Migration Act 1958 (Cth) s.426A

SZGLA v Minister for Immigration & Citizenship & Anor [2006] FMCA 1356
SZGLA v Minister for Immigration & Citizenship & Anor [2007] FCA 103
SZCTH v Minister for Immigration (No 1) [2004] FMCA 211 distinguished.
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 referred to.

Applicant:

SZGLA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG24 of 2008

Judgment of:

Scarlett FM

Hearing date:

4 February 2008

Date of Last Submission:

4 February 2008

Delivered at:

Sydney

Delivered on:

4 February 2008

REPRESENTATION

Solicitors for the Applicant:

In Person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $600.00.
No further application for review of the decision of the Refugee Review Tribunal N04/50102 signed 13 April 2005 is to be accepted for filing without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG24 of 2008

SZGLA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter the first respondent, the Minister for Immigration & Citizenship has asked the Court to dismiss the applicant's application for judicial review as an abuse of the Court's process. The basis of the application made by the Minister is that the proceedings have already been dealt with. The Minister relies on an affidavit sworn by

Ms Kantaria, solicitor, sworn on 17 January 2008, in which she sets out the litigation history of this matter.
The applicant applied for a protection visa on 22 September 2004. That application was refused on 7 October 2004. The applicant then, on 1 November 2004, applied to the Refugee Review Tribunal for a review of that decision. The decision was signed on 13 April 2005, and handed down on 5 May in that year. The Tribunal noted that the applicant had been invited to attend a hearing by means of a letter, dated 21 February 2005.
The hearing was scheduled to take place on 12 April 2005. When the applicant did not appear the Tribunal exercised its power under s.426A of the Migration Act to decide the application without giving the applicant a further opportunity to attend the hearing. The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.
The applicant then sought judicial review of that decision by filing an application on 30 May 2005. The application was heard by Smith FM on 27 September 2006. The applicant attended Court but was not legally represented. On that same day his Honour dismissed the application with costs. The citation to that decision is SZGLA v Minister for Immigration & Citizenship & Anor [2006] FMCA 1356.
The applicant then appealed against the decision of Smith FM by filing a notice of appeal on 3 November 2006. That appeal was dealt with by Tracey J on 12 February 2007. His Honour dismissed the appeal (see SZGLA v Minister for Immigration & Citizenship & Anor[1]).
[1] [2007] FCA 103
The applicant then, on 26 February 2007, filed an application for special leave to appeal to the High Court of Australia. That application was dismissed on 12 December 2007 by Gummow, Kiefel JJ, and a copy of the order of their Honours has been annexed to Ms Kantaria's affidavit.
After his application for leave to appeal was refused by the High Court, the applicant then commenced proceedings again in this Court by filing an application and an affidavit in support on 7 January 2008. He told the Court today that he had not received from the Refugee Review Tribunal notification of the hearing and sought the opportunity to appear before the Tribunal.
In his application he sets out three grounds:
(1)The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied him procedural fairness in that the Tribunal failed to investigate his genuine claims under the requirements of the Migration Act.
(2)The applicant claims that the application was not vexatious or an abuse of process because a Tribunal decision can be reviewed a second time under certain circumstances, and he refers to a decision of SZCTH v Minister for Immigration (No 1).[2]
(3)That the Tribunal applied the wrong test by requiring independent evidence of the facts before the Tribunal that accept a claim being made by the applicant. The Tribunal was, in effect, placing too high an onus of proof on the applicant for failing to give the applicant the benefit of a doubt.
[2] [2004] FMCA 211
It can be seen that those grounds do not have any merit. There is no obligation on the Tribunal to conduct its own independent investigation of the applicant's claims. The Tribunal decision has already been subject to judicial review in the Federal Magistrates Court and on appeal for the Federal Court and the High Court of Australia. The decision of SZCTH v Minister for Immigration was, with respect, decided in 2004, a long time before more recent amendments to the Migration Act. In my view, the decision in SZCTH no longer represents the law.
The third claim about the Tribunal applying a wrong test by requiring too high an onus of proof on the applicant should be considered in the light of the fact that the applicant did not attend the Tribunal hearing, even though the Tribunal had written to him and advised him that it was unable to make a decision in his favour on the material presently before it. All three of those grounds that appear in this application are standard form grounds that the Court sees from time to time, and have no substance.
The applicant repeats ground 1 in his application but also sets in his affidavit that sets out in paras.4 and 5 of the affidavit the following claim:
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 s.424A of the Migration Act. I would like to seek leave from the Court to make this new line of argument on the basis that at the time of my matter before the Court the decision of SAAP was not in force and, therefore, there was a miscarriage of justice.
That claim is entirely misconceived and it is just factually wrong. The decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[3] was handed down on 18 May 2005. It was certainly in force when the application for review was heard by Smith FM on 27 September 2006. It is not a new line of argument. It was the law at the time when Smith FM decided the application, and it was the law when the appeal was heard.
[3] [2005] HCA 24
This application has no merit whatsoever. It is an attempt to re-litigate a matter that has already been decided, and it is quite clearly a vexatious proceeding brought in order to obtain the extension of a bridging visa. It is an abusive process of the Court and it will be dismissed as an abusive process. It will be dismissed with a costs order in favour of the first respondent Minister and I will also order that no further application for review of the decision of the Refugee Review Tribunal N04-50102, signed on 13 April 2005 is to be accepted for filing without leave of the Court. I will hear a submission on costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 13 February 2008