SZGQN v Minister for Immigration
[2008] FMCA 737
•27 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGQN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 737 |
| MIGRATION – RRT decision – second application to Tribunal after unsuccessful judicial review – Tribunal declined jurisdiction – no arguable case – application dismissed at first court date. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.10, 44.12(1)(a) Migration Act 1958 (Cth) |
| SZASP v Minister for Immigration & Citizenship [2007] FCA 771 SZGQN v Minister for Immigration [2006] FMCA 1344 SZGQN v Minister for Immigration & Citizenship [2007] FCA 428 SZGQN v Minister for Immigration & Citizenship [2008] HCATrans 35 |
| Applicant: | SZGQN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 989 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 27 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms K Hooper |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $1,000.
Direct that no further application for review of the decisions of the Refugee Review Tribunal handed down on 23 May 2005 or 25 March 2008, or for review of the decision of the delegate of the first respondent dated 10 November 2004, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa received on 2 August 2004, shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 989 of 2008
| SZGQN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
On 18 April 2008, the applicant filed an application seeking orders under s.476 of the Migration Act in respect of a decision of the Refugee Review Tribunal dated 25 March 2008. In that decision, the Tribunal refused to entertain an application made to it on 27 February 2008, in respect of a decision of a delegate made on 10 November 2004, which refused to grant a protection visa to the applicant.
The Tribunal referred to the fact that a previous Tribunal member had affirmed the delegate's decision on 23 May 2005, and that the validity of that decision was upheld by this Court in SZGQN v Minister for Immigration [2006] FMCA 1344. An appeal was dismissed in the Federal Court (see SZGQN v Minister for Immigration & Citizenship [2007] FCA 428), and an application for special leave was dismissed by the High Court on 7 February 2008 (see SZGQN v Minister for Immigration & Citizenship [2008] HCATrans 35).
In its present decision, the Tribunal referred to established law that the Tribunal has no jurisdiction to review a delegate's decision twice. In my opinion, its decision was clearly correct, and the present application has no prospects of obtaining an order compelling the Tribunal to further consider the applicant's refugee claims made in his original protection visa application.
For that reason, in my opinion, it is appropriate to dismiss the application under r.44.12(1)(a), on the ground that it does not raise an arguable case for the relief claimed.
An order to this effect has been sought by the Minister in his response, which has been served on the applicant. The Minister has also filed an interlocutory application for summary dismissal of the principal application, on the ground of abuse of process or otherwise under r.13.10 of the Federal Magistrate Court Rules. The affidavit in support of the ‘application in a case’ details the litigation history to which I have referred above.
I do not consider it necessary for me to address that application, in circumstances where I consider it preferable to dismiss the application under r.44.12(1)(a). However, in my opinion the present application does have clear indications of abuse of process such as were referred to by Moore J in SZASP v Minister for Immigration & Citizenship [2007] FCA 771.
I note that the applicant was represented by counsel, Dr Azzi, before both Emmett FM and Collier J, and the legality of the original Tribunal's decision has been very thoroughly examined in the previous litigation.
The applicant today attempted to justify his present application on two grounds, which are manifestly hopeless, in my opinion. The first was a repeat of his counsel's unsuccessful submissions in relation to the previous Tribunal decision. His second argument was that he still has fears of persecution in Bangladesh arising from the current circumstances in that country. However, these are matters which could not give rise to any relief from this Court, since the Court has no power to decide who are refugees and whether they should be given protection visas.
In the circumstances, I consider it appropriate to direct the Court’s registry not to receive any further applications in relation to the protection visa application of this applicant without the prior leave of the Court.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 4 June 2008
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