SZHUE v Minister for Immigration - [2007] FMCA 1298

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHUE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1298

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa.

PRACTICE & PROCEDURE – Show cause – Tribunal has no jurisdiction – no reasonable prospect of success.

Migration Act 1958 (Cth), s.412
Federal Magistrates Court Rules 2001, r.44.12

SZHUE v Minister for Immigration & Anor [2006] FMCA 402
SZHUE v Minister for Immigration & Multicultural Affairs [2006] FCA 1094
SZHUE v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 178
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301.

Applicant:

SZHUE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2108 of 2007

Judgment of:

Scarlett FM

Hearing date:

30 July 2007

Date of last submission:

30 July 2007

Delivered at:

Sydney

Delivered on:

30 July 2007

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms Blackman

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application is dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2108 of 2007

SZHUE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal. The decision of the Tribunal which the Applicant seeks to have reviewed is a decision signed on 12^th June 2007 that the Tribunal does not have jurisdiction in this matter.
There were two reasons why the Tribunal said that it did not have jurisdiction in that matter:
i)because the application for review was lodged outside the time limit of 28 days prescribed by s.412 of the Migration Act; and
ii)more importantly, the Tribunal had already reviewed the delegate's decision.
The First Respondent Minister, by way of Response filed on 26^th July 2007, seeks that the application should be dismissed under the provisions of r.44.12, because the Applicant has not raised an arguable case for the relief claimed. The circumstances are clearly set out in paragraph 2 of the Response filed on behalf of the First Respondent Minister.
On 29^th July 2005, the Applicant applied for a Protection (Class XA) visa. On 25^th August 2005, a delegate of the Minister refused the application for a visa. The Applicant applied to the Refugee Review Tribunal for review of the delegate's decision on 29^th August 2005. On 27^th October 2005, the Tribunal affirmed the delegate's decision. The Applicant sought judicial review of the Tribunal decision. That application was heard before me on 9^th March 2006 and dismissed. (See SZHUE v Minister for Immigration & Anor [2006] FMCA 402).
The Applicant then appealed and, on 11^th August 2006, Jacobson J dismissed the appeal with costs. (See SZHUE v Minister for Immigration & Multicultural Affairs [2006] FCA 1094). The Applicant then sought special leave to appeal to the High Court of Australia and, in the proceedings SZHUE v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 178, the application for special leave to appeal was refused by the High Court of Australia.
Undaunted by this string of refusals, the Applicant then made another application to the Refugee Review Tribunal, seeking a review of the delegate's decision. The Tribunal found that it did not have the jurisdiction to review that decision. As the Tribunal pointed out, the Applicant sought a review of the decision by his application lodged with the Tribunal on 29^th August 2005, and the Tribunal, differently‑constituted, affirmed the delegate's decision on 27^th October 2005. The Tribunal has no jurisdiction to review a delegate's decision twice. (See Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301.) The Tribunal went on to say:
These principles have been confirmed in a large number of migration cases involving repeat applications to the Tribunal and the Courts, relating to the same primary decision. It may be observed that many of these applications have found to be an abuse of process, instituted for the purpose of prolonging the applicant's stay in Australia.
The Tribunal noted that sub-s.412(1)(b) of the Migration Act requires an application for review to be given to the Tribunal within the prescribed time period, and, for that reason also, the Tribunal found that it had no jurisdiction.
The Applicant, in his application, sets out the grounds for relief upon which he relies. They are as follows:
a)The Tribunal failed to act according to migration law and regulation.
b)The Tribunal did not apply the correct laws when considering this matter.
c)The Tribunal misinterpreted the migration laws.
d)The Tribunal failed to exercise its jurisdiction under the migration act.
He told the Court that the Tribunal had previously failed to understand him, as had the Court, and admitted that he had had the services of an interpreter but he did not have enough time to explain the case. The Applicant also said that he had a friend, who did not attend Court today, who had said the Tribunal decision was wrong.
As to the Applicant's substantive claims, when asked which migration law and regulation the Tribunal failed act according to and which correct laws the Tribunal did not apply, the Applicant referred to "the natural law". As to how the Tribunal had misinterpreted the migration laws, the Applicant said that he was not a lawyer. The Applicant was not able to explain why it was that the Tribunal failed to exercise its jurisdiction under the Migration Act. Quite clearly, the Tribunal did not exercise its jurisdiction under the Migration Act, because it did not have any jurisdiction to exercise.
The Applicant's substantive application is an application that has no reasonable prospects of success. The Applicant does not raise an arguable case for the relief that is claimed. It does not raise any case. The application is, unfortunately, a scam. It is an abuse of process that the Court has seen all too often. The Court is well and truly familiar with the practice of applicants who seek review of a delegate's decision and, when the Tribunal does not rule in their favour, exercise their lawful rights to seek judicial review through the Federal Magistrates Court, and, when that is unsuccessful, appeal to the Full Court of the Federal Court, and then, if that is unsuccessful, seek special leave to appeal to the High Court.
There is no criticism to be made of any of that procedure, because that is the way the law operates. What some unscrupulous applicants - and I include this Applicant - then do is to purport to start again at the beginning, by lodging a second application for review of the original delegate's decision with the Refugee Review Tribunal. It has to be out of time.
In this case, the Applicant had sought his original review of the delegate's decision on 29^th August 2005, four days after it was made. His second application was lodged on 10^th May 2007. One does not have to be a mathematical genius to work out that that is considerably more than 28 days after the Applicant was clearly notified and set off in his progress through the Courts. This is an application that has quite clearly been brought for the purpose of prolonging the Applicant's stay in Australia after all legitimate means have been exhausted. It is, as I said, a scam.
The application will be dismissed under the provisions of r.44.12 of the Federal Magistrates Court Rules 2001. This is most clearly an occasion where the Applicant should pay the First Respondent's costs.

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

Associate: V. Lee

Date: 7 August 2007