SZGLC v Minister for Immigration & Anor

[2008] FMCA 650

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGLC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 650

MIGRATION – Visa – Protection visa – RRT – application for review of decision of the Refugee Review Tribunal – where Tribunal found that it had no jurisdiction – where delegate’s decision had already been reviewed by the Tribunal.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process.

Federal Magistrates Court Rules 2001, r.13.10

SZGLC v Minister for Immigration & Anor [2006] FMCA 1849
SZGLC v Minister for Immigration & Multicultural Affairs [2007] FCA 681
SZGLC v Minister for Immigration & Citizenship [2008] HCA Trans 046

Applicant: SZGLC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 833 of 2008

Judgment of: Scarlett FM

Hearing date: 9 May 2008

Date of Last Submission: 9 May 2008

Delivered at: Sydney

Delivered on: 9 May 2008

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Ms Tondl

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is summarily dismissed under r. 13.10(c) as an abuse of process. 

2. The Application is summarily dismissed under r.13.10(a) as the Applicant has no reasonable prospect of successfully prosecuting the claim.

3. The Applicant is to pay the First Respondent's costs fixed in the sum of $1,125.00. 

4. No further application for review of the decision of the Refugee Review Tribunal signed on 13 March 2008 and handed down on 17 March 2008 is to be accepted for filing without leave of the Court. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 833 of 2008

SZGLC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The substantive application before the Court is an application for review of a decision of the Refugee Review Tribunal that was signed on 13^th March 2008 and handed down on 17^th March 2008. The Tribunal found that it did not have jurisdiction to hear the application for review.

2. The Minister For Immigration & Citizenship has filed a Response saying that the application is frivolous and/or vexatious and it amounts to an abuse of the Court's process. The Minister makes the point that the decision of the delegate refusing the application for a visa has already been the subject of review by the Refugee Review Tribunal.

3. The Applicant has sought judicial review of that decision which has been unsuccessful. What the Applicant then appears to have done, according to the Minister, is purport to make a fresh application to the Refugee Review Tribunal for review of the original decision of the delegate which had already been reviewed. The Tribunal found that it had no jurisdiction to review the decision because it had already subjected the delegate's decision to a valid refugee review.

4. The history of this matter is that the Applicant arrived in Australia on 15^th August 2004. He applied for a protection visa on 10^th September in that year. On 7^th December 2004 a delegate of the Minister refused the application for a visa. The Applicant then, on 31^st December 2004, applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the delegate's decision on 15^th April 2005. The Applicant then applied to the Federal Magistrates Court for a review of that decision.

5. On 7^th October 2005 Lloyd‑Jones FM made orders by consent setting aside the Tribunal decision and remitting the application to the Refugee Review Tribunal. The Tribunal then conducted a review of the delegate's decision and on 17^th January 2006 signed its decision which it then handed down on 31^st January 2006. The Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.

6. The Applicant then sought judicial review of that Tribunal decision. On 20^th December 2006 Turner FM dismissed the application for judicial review. (See SZGLC v Minister for Immigration & Anor[1]).

   [1] [2006] FMCA 1849

7. The Applicant then appealed against that decision. On 10^th May 2007, in the Federal Court, Edmonds J, exercising the jurisdiction of the Full Court of the Federal Court, dismissed the appeal with costs. (See SZGLC v Minister for Immigration & Multicultural Affairs[2].)

   [2] [2007] FCA 681

8. The Applicant then sought special leave to appeal to the High Court of Australia. That application was brought on 4^th June 2007. On 7^th February 2008 their Honours Kirby and Heydon JJ dismissed the applications for special leave. (See SZGLC v Minister for Immigration & Citizenship[3]).

   [3] [2008] HCA Trans 046

9. Just under a month later, on 3^rd March 2008, the Applicant made his second application to the Refugee Review Tribunal to review the original decision of the delegate. The Tribunal found that it had no jurisdiction.

10. The Applicant then, on 7^th April 2008, commenced these proceedings.  He claimed that the Tribunal failed to act according to migration law and regulation, he failed to act according to natural justice and failed to consider the changes of circumstances in his home country. Not surprisingly, the Minister for Immigration & Citizenship has sought summary dismissal of the application on the grounds that it is frivolous or vexatious, that it amounts to an abuse of the Court's process. 

11. The Minister claims that the Applicant has not raised an arguable case for the relief claimed.  It is well established that the Refugee Review Tribunal has no power to reconsider its own decisions.  It matters not if there has been a change of circumstances in the Applicant's home country.  It is well established that the Tribunal only has the power to consider the delegate's decision on the one occasion unless its earlier review has been set aside by a Court of competent jurisdiction. 

12. There is no error in the Tribunal’s finding that it has no jurisdiction. What the Applicant has claimed is that he has fresh evidence. He claimed that some person arrived out from Bangladesh bringing fresh documentary evidence and he only received those documents last Sunday, 4^th May 2008. He has made no mention of that fact in his application or his affidavit in support. Unfortunately, the tactic of bringing a fresh and groundless second application to the Refugee Review Tribunal is a scam that is only too well known to the Federal Magistrates Court.

13. These proceedings have no merit whatsoever any more than the application to the Refugee Review Tribunal had any merit. These proceedings do, in fact, constitute an abuse of the Court's process. They must be summarily dismissed.

14. The Minister for Immigration & Citizenship is seeking an order for costs if the application for summary dismissal is successful, which it will be. The amount sought is $1,125.00 which is well within the scale envisaged by the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  20 May 2008