SZHVL v Minister for Immigration
[2008] FMCA 1408
•30 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1408 |
| MIGRATION – RRT decision – second application for judicial review – no arguable case – application dismissed at First Court Date. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth) |
| SZHVL v Minister for Immigration [2007] FMCA 1816 SZHVL v Minister for Immigration & Citizenship [2008] FCA 356 SZHVL v Minister for Immigration & Citizenship [2008] HCASL 426 |
| Applicant: | SZHVL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2243 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 30 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms K Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
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 $950.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2243 of 2008
| SZHVL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 29 August 2008, seeking review under s.476 of the Migration Act of a decision of the Refugee Review Tribunal which was handed down on 29 November 2005. In that decision, the Tribunal affirmed a decision of a delegate of the Minister refusing to grant a protection visa to the applicant.
The Tribunal's decision has already been the subject of judicial review under the same jurisdiction of the Court. Nicholls FM addressed many arguments attempting to establish jurisdictional error by the Tribunal, and dismissed an application on 8 November 2007 (see SZHVL v Minister for Immigration [2007] FMCA 1816).
The applicant appealed, and pursued other arguments before McKerracher J. The appeal was dismissed on 18 March 2007 (see SZHVL v Minister for Immigration & Citizenship [2008] FCA 356).
The applicant then sought special leave to appeal to the High Court, and that application was refused by Hayne and Crennan JJ on 6 August 2008 (see SZHVL v Minister for Immigration & Citizenship [2008] HCASL 426). Their Honours said that the applicant had advanced no arguable basis for doubting the correctness of the decisions in the Courts below.
The present application has as its grounds:
1.The Tribunal failed to comply with S424 of the Migration Act 1958.
2.This application is not vexatious & not the abuse of process. A Tribunal decision can be reviewed by the court second time under certain circumstances. SZCTH v MIAC.
These grounds lack any apparent arguable merit, even without taking into account the previous determination of the Court that the Tribunal's decision was not affected by jurisdictional error. The application also appears to me to be clearly doomed to fail on grounds of res judicata or Anshun estoppel.
The Minister has given the applicant notice that an application would be made today at the First Court Date, for the application to be dismissed summarily. In the circumstances, I consider it appropriate to do that.
The applicant has had the opportunity today to address the Court with the assistance of a Malayalam interpreter. His argument to justify a new court case essentially referred to further events and documents obtained from India in support of his claim to fear return. However, under Australian migration law, the Court cannot itself entertain new refugee claims.
In all the circumstances, indicated above, I am not satisfied that the application raises an arguable case for the relief claimed. It also appears to be an abuse of process. I consider it appropriate to dismiss the application today under r.44.12(1)(a).
The Minister has sought costs on an indemnity basis, and a direction to the Registry not to allow further applications to be made relating to the applicant's protection visa application. However the applicant's history of litigation does not, in my opinion, justify these two orders being made on this occasion. The situation will be different if he returns to the Court with another hopeless application.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 9 October 2008
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