SZHRQ v Minister for Immigration - [2008] FMCA 1168

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHRQ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1168

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as an abuse of process – decision previously reviewed by the Courts.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.430

SZHRQ v Minister for Immigration [2006] FMCA 1504
SZHRQ v Minister for Immigration and Citizenship [2007] FCA 327
SZHRQ v Minister for Immigration [2007] HCATrans 758

Applicant:

SZHRQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1926 of 2008

Judgment of:

Driver FM

Hearing date:

19 August 2008

Delivered at:

Sydney

Delivered on:

19 August 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J Pinder
DLA Phillips Fox

INTERLOCUTORY ORDERS

The show cause application is dismissed, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by this applicant to review any migration decision relating to his application for a protection visa made on 19 April 2005, including but not limited to the decision of the delegate of the Minister dated 26 May 2005 and the decision of the Refugee Review Tribunal handed down on 15 November 2005 and any notification of those decisions, shall be accepted for filing in this Court, except by leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,350.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1926 of 2008

SZHRQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application in a case filed on 13 August 2008. In that application, the Minister for Immigration and Citizenship seeks the summary dismissal of a show cause application, filed on 25 July 2008. That show cause application sought review by this Court of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 15 November 2005.
The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and arrived in Australia on 11 March 2005. On 19 April 2005, he lodged an application for a protection visa with the Minister's Department. That applicant was rejected by a delegate on 26 May 2005. The applicant sought review of that decision by the Tribunal on 21 June 2005.
The applicant claimed political persecution in India. The Tribunal found some of the applicant's claims to be speculative but also found that he could avoid any fear of harm by relocation.
The Minister asserts that the application discloses no reasonable cause of action, is frivolous or vexatious and is an abuse of the process of the Court. In addition, the Minister seeks orders preventing the filing of a further application without leave of the Court and costs.
The Minister's application is supported by the affidavit of Greg Johnson, made on 13 August 2008. I received as a submission the applicant's affidavit made on 25 July 2008. I accept from the affidavit of Mr Johnson that the decision of the Tribunal has previously been reviewed by this Court. The applicant sought judicial review before this Court on 25 November 2008. The matter was dealt with by this court on 6 October 2006 in SZHRQ v Minister for Immigration [2006] FMCA 1504. Barnes FM analysed the numerous grounds in the application before her and found that none of them were substantiated. At [25] of her judgment, her Honour found that the decision of the Tribunal was free from jurisdictional error and hence that the application before her must be dismissed.
The applicant did not appeal from the decision of this Court within time but sought leave to appeal on 31 October 2006. That application was refused by the Federal Court on 8 March 2007. In that decision[1], Downes J analysed the grounds on which leave to appeal was sought, which he noted were rather similar to the grounds raised before this Court. At [11], his Honour said:
The draft grounds of appeal as amplified by the document filed this morning do not raise any ground which would assist in the appellant’s claims for an order granting leave to appeal out of time. The oral submissions put to me this morning by the appellant did not do anything other than seek reconsideration of the facts. My reading of the decision of the Tribunal does not reveal any potential error of law. Barnes FM considered grounds of appeal that are substantially similar to those contained in the draft notice of appeal. She could find no error in the Tribunal’s decision. I can see no error in her decision. It follows that I am not satisfied that an appeal, if leave were to be granted, would have merit. For these reasons the application for leave to appeal must be dismissed and will be dismissed with costs.
[1] SZHRQ v Minister for Immigration and Citizenship [2007] FCA 327
The applicant's application for special leave to appeal to the High Court was likewise unsuccessful. That application was dismissed by Hayne and Crennan JJ on 11 December 2007[2]. Hayne J noted at [10] of the transcript that their Honours saw no reason to doubt the correctness of the conclusions reached in the Courts below.
[2] SZHRQ v Minister for Immigration [2007] HCATrans 758
The present show cause application asserts a breach of s.430 of the Migration Act 1958 (Cth). That is obviously false as the decision record of the Tribunal is annexed to the applicant's own affidavit. Secondly, the application asserts a failure to properly apply the consideration that an applicant for refugee status should be given the benefit of the doubt. That appears to me to be an attack on the merits of the Tribunal decision.
The applicant confirmed in his oral submissions that he is simply seeking a different outcome from that achieved in the Tribunal. The applicant's affidavit asserts a constructive failure by the Tribunal to exercise its jurisdiction and a denial of procedural fairness. There is, in my view, nothing raised by the applicant in his present proceeding that could possibly warrant a further exercise of this Court's powers of review of the Tribunal decision.
Nothing new has been raised and the issues were comprehensively considered by Barnes FM in her decision. The present show cause application is a patent abuse of this Court's process.
I will, therefore, dismiss the show cause application pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The Minister should not be further vexed by applications of this nature. I will, therefore, also order that no further applications by this applicant to review any migration decision relating to his application for a protection visa made on 19 April 2005, including, but not limited to, the decision of the delegate of the Minister dated 26 May 2005 and the decision of the Tribunal handed down on 15 November 2005 and any notification of those decisions, shall be accepted for filing in this Court except by leave of the Court.
In consequence of the dismissal of the show cause application, the Minister seeks an order for costs fixed in the sum of $1,350. Somewhat generously, the Minister did seek costs on an indemnity basis. The Minister's actual legal costs to this point are $1,857.34. I accept that costs of not less than $1,350 have been reasonably and properly incurred when assessed on a party and party basis. The applicant indicated that he would require time to pay the costs but did not oppose the making of the costs order. I will order that the applicant pay the first's respondents costs and disbursements of and incidental to the application, fixed in the sum of $1,350.

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

Associate:

Date: 21 August 2008