SZHLZ v Minister for Immigration

[2007] FMCA 1585

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHLZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1585

MIGRATION – RRT decision – second application for judicial review after previous unsuccessful judicial review – abuse of process – application dismissed at first court date.

Federal Magistrates Court Rules 2001 (Cth), r.13.10
Migration Act 1958 (Cth), s.424A

SZHLZ v Minister Immigration [2006] FMCA 983

SZHLZ v Minister for Immigration & Multicultural Affairs [2006] FCA 1460
SZHLZ v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 362

Applicant: SZHLZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2546 of 2007

Judgment of: Smith FM

Hearing date: 5 September 2007

Delivered at: Sydney

Delivered on: 5 September 2007

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms K Hooper

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The substantive application is dismissed under Rules 13.10(a) and (c) as an abuse of the process of the Court.

2. The applicant must pay the first respondent’s costs in the sum of $1,000.

3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 4 October 2005 reference N05/51474, or for review of the decision of the delegate of the first respondent dated 2 June 2005 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 14 April 2005, shall be accepted for filing without prior leave of the Court. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2546 of 2007

SZHLZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In 2005, the applicant applied for a protection visa.  He claimed to fear persecution if he returned to his country of nationality, Pakistan.  His claims were considered by a delegate of the Minister, and then on appeal by the Refugee Review Tribunal.  It handed down a decision on 4 October 2005, affirming the delegate’s refusal of a visa. 

2. The Tribunal was not persuaded by the claims made in the protection visa application, because they lacked detail.  The Tribunal noted that the applicant had been invited to attend a hearing in accordance with procedures under the Migration Act 1958 (Cth), and that he responded by advising that he did not wish to give oral evidence, and by consenting to the Tribunal proceeding to make a decision without his appearing at a hearing.

3. The applicant sought judicial review of the decision of the Tribunal.  His application was dismissed summarily by Driver FM, on the ground that he did not disclose an arguable case (see SZHLZ v Minister Immigration [2006] FMCA 983).

4. Nicholson J refused an application for leave to appeal (see SZHLZ v Minister for Immigration & Multicultural Affairs [2006] FCA 1460). His Honour considered the legality of the proceedings before the Tribunal broadly, including contentions concerning a breach of s.424 and that the applicant had a medical incapacity at the time of his non-attendance before the Tribunal.

5. The applicant then sought special leave to appeal to the High Court, but this application was refused by Kirby and Callinan JJ (see SZHLZ v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 362). When giving the reasons of the Court, Kirby J noted that the applicant had not demonstrated any error in the decisions of the Tribunal, Federal Magistrates Court or Federal Court.

6. The applicant has now filed his present application to this Court, seeking another review of the 2005 decision of the Tribunal.  His application is listed today at a first Court date. 

7. The Minister has filed an ‘application in a case’ which was returnable for hearing today.   It has been served on the applicant in accordance with the Federal Magistrates Court Rules 2001 (Cth). It seeks the summary dismissal of the application on any one of the three grounds identified in r.13.10, that is, that the applicant has no reasonable prospect of successfully prosecuting the proceeding, that the proceeding is frivolous or vexatious, and that the proceeding is an abuse of the process of the Court. In my opinion, the proceeding can be characterised in terms of both (a) and (c) of that rule, without my needing to consider whether it is also "frivolous or vexatious".

8. The grounds set out in the application to the Court contain unparticularised allegations of failure to comply with s.424A, and no other grounds. However, this ground is manifestly untenable. Indeed, I note that such a contention of breach of s.424A(1) was abandoned by the solicitor for the applicant before Driver FM. I therefore consider it appropriate to dismiss the application under r.13.10 (a) & (c).

9. The Minister also seeks an order that the registry should not accept any further applications in respect of the applicant's protection visa application without prior leave of the Court.  I consider that such an order would be appropriate in this case, taking into account the inability of the applicant to point to any justification for his present attempt to re‑litigate issues already addressed by three courts.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  24 September 2007