SZHEP v Minister for Immigration

[2008] FMCA 643

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHEP & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 643

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no jurisdiction and abuse of process.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.417, 474

SAAP v Minister for Immigration [2005] HCA 24
SZCTH v Minister for Immigration (No 1) [2004] FMCA 211
SZHEP & Ors v Minister for Immigration & Anor [2007] FMCA 636
SZHEP v Minister for Immigration & Citizenship [2007] FCA 1219

SZHEP & Ors v Minister for Immigration and Citizenship & Anor [2008] HCASL 123

First Applicant: SZHEP

Second Applicant: SZHEQ

Third Applicant: SZHER

Fourth Applicant: SZHES

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 988 of 2008

Judgment of: Driver FM

Hearing date: 16 May 2008

Delivered at: Sydney

Delivered on: 16 May 2008

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the Respondents: Ms D Attard
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $850.

3. No further application by these applicants to review any migration decision relating to their protection visa applications made on 22 March 2005, including the decisions of the delegate and the Refugee Review Tribunal, be accepted for filing in this Court except by leave of a Federal Magistrate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 988 of 2008

SZHEP

First Applicant

SZHEQ

Second Applicant

SZHER

Third Applicant

SZHES

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 21 April 2008 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal).  The Tribunal decision was signed on 8 August 2005.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants' protection visas.  It appears from a stamp on the cover page of the Tribunal decision that the decision was handed down on 30 August 2005. 

2. There are four applicants, a husband, a wife and their two children who are both now adults.  The applicants are citizens of India who arrived in Australia on 26 February 2005.  On 22 March 2005 they lodged an application for protection visas with the Minister's Department.  On 8 April 2005 the Minister's delegate refused that application and on 6 May 2005 they applied for review of that decision.  The Tribunal found that notwithstanding harm suffered by the applicants, they could find safe haven elsewhere in India. 

3. The show cause application is supported by an affidavit by the first applicant also filed on 21 April 2008.  I accepted paragraphs one and two of that affidavit as evidence and the remainder as submissions. 

4. The Minister's response, filed on 6 May 2008, notes that the applicants have previously sought judicial review of the Tribunal decision unsuccessfully.  The response asserts that the application is frivolous and/or vexatious and that it amounts to an abuse of the Court's process.  The response also asserts that the application has not raised an arguable case for the relief claimed.  The Minister's response is supported by the affidavit of Denise Attard made and filed on 6 May 2008. 

5. The first question is whether this Court has any jurisdiction to entertain the present application.  I accept from the affidavit of Ms Attard that the Tribunal decision in issue was previously reviewed by this Court[1].  At [24] of his judgment in that case Smith FM said:

   Looking at the evidence which is before me I am not persuaded that the Tribunal arrived at a conclusion that the applicants “do not have a well founded fear of Convention related persecution in India” which was not available on all the material that was before the Tribunal.   I therefore am not persuaded that the Tribunal's decision was affected by jurisdictional error.  The decision is therefore a privative clause decision, and I must dismiss the application.

   [1] SZHEP & Ors v Minister for Immigration & Anor [2007] FMCA 636

6. I also accept from the affidavit of Ms Attard that the applicants unsuccessfully appealed from a decision of this Court to the Federal Court[2].  The Federal Court reviewed the decision of the Tribunal and of this Court.  At [12], his Honour Finn J said:

   My own view on this matter is that even though the decision of the Tribunal on the question of relocation is parsimonious in detail, I am not satisfied that it committed any jurisdictional error in arriving at the conclusion it did or that the Federal Magistrate erred in the view [he] took of the Tribunal's decision and of the no evidence challenge to it. 

   [2] SZHEP v Minister for Immigration & Citizenship [2007] FCA 1219

7. At [14] his Honour stated in part:

   I do not consider, as I have indicated, that either the Tribunal or the Federal Magistrate on review erred in taking the view they respectively did of this matter.  I would, though, add this observation.  If the question of relocation arises in a given instance, a Tribunal should reasonably be expected to take this matter up in an appropriate way with the applicant concerned. 

8. At [15] his Honour continued:

   While I have come to the conclusion that the appeal ought to be dismissed, I do consider that this is one of those cases where consideration should properly be given to the circumstances of the appellants on humanitarian grounds.  The requirement that they again relocate is likely, in the circumstances, to be more than simply disruptive of their lives.

9. I also accept from the affidavit of Ms Attard that the High Court refused special leave to appeal from the decision of the Federal Court[3].  At [2] their Honours, Hayne and Crennan JJ found that there is no reason to doubt the correctness of the decision of Finn J. 

   [3] SZHEP & Ors v Minister for Immigration and Citizenship & Anor [2008] HCASL 123

10. Considering the earlier decisions of this Court, the Federal Court and the High Court I conclude that the question of whether the decision of the tribunal is a privative clause decision has already been conclusively determined. That being the case, the effect of s.474 of the Migration Act 1958 (Cth) (“the Migration Act”) is that this Court has no jurisdiction to entertain the present application. Were I to be wrong in that conclusion I am also satisfied, on the basis of the available material, that the present application is an abuse of the Court's process.

11. The application asserts a constructive failure of jurisdiction by the Tribunal on the basis of a denial of procedural fairness and a failure to investigate the applicants' claims and an application of the wrong test by the Tribunal.  The application asserts that it is not vexatious or an abuse of process and relies upon a decision of mine in SZCTH v Minister for Immigration (No 1) [2004] FMCA 211. In that case I found that the Court had jurisdiction to entertain an application to review a decision of a delegate of the Minister where the Tribunal had found it lacked jurisdiction to deal with the matter. At that time the prohibition on this Court reviewing a “primary decision” as defined in the Migration Act depended upon the decision being a privative clause decision. The Migration Act has since been amended to state that the prohibition extends to purported privative clause decisions.

12. It follows that the Court no longer can entertain applications to review primary decisions as defined.  In any event, that decision does not stand for the proposition contended for by the applicants, namely that the Court can and should deal with repeated applications to review the same decision of the Tribunal. 

13. I reject the contention in the first applicant's affidavit that he has not had a prior opportunity to advance an argument based upon the decision of the High Court in SAAP v Minister for Immigration [2005] HCA 24. The previous decision of this Court was made on 12 April 2007, well after the decision of the High Court and the issue could have been raised in those proceedings.

14. I find that the present application is an abuse of process and the application is dismissed.

15. Having regard to the observations of Finn J, this is a case that would lend itself to consideration by the Minister on humanitarian grounds. I was told by the solicitor for the Minister that a request for ministerial intervention under s.417 of the Migration Act was disposed of on or about 15 March 2007 by the then Minister on the basis that he would not consider the request. In my view, the concerns raised by Finn J were serious and ought to have been considered. That is a matter that the present Minister might take into account. It is a matter for the applicants whether they wish to reagitate that question before the present Minister.

16. The application having been dismissed, costs should follow the event.  The Minister seeks costs on a party/party basis and not on an indemnity basis fixed in the sum of $850.  The applicants did not wish to be heard on costs.   

17. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $850.

18. The Minister also seeks orders that the applicants be prevented from commencing further proceedings in this Court related to their protection visa applications except by leave of the Court.  An abuse of process having been found, it is appropriate to make such an order.  I will order that no further application by these applicants to review any migration decision relating to their protection visa applications made on 22 March 2005, including the decisions of the delegate and the Refugee Review Tribunal, be accepted for filing in this Court except by leave of a Federal Magistrate.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of DRIVER FM

Associate: 

Date:  26 May 2008