SZHYM v Minister for Immigration

[2008] FMCA 736

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYM v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 736

MIGRATION – RRT decision – second application for judicial review – no arguable case – abuse of process – application dismissed at first court date.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth)

SZHYM v Minister for Immigration [2007] FMCA 129
SZHYM v Ministerfor Immigration & Citizenship [2007] FCA 869
SYHYM v Minister for Immigration & Citizenship [2008] HCASL 30

Applicant: SZHYM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 956 of 2008

Judgment of: Smith FM

Hearing date: 27 May 2008

Delivered at: Sydney

Delivered on: 27 May 2008

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms M Mafessanti

Solicitors for the Respondents: Clayton Utz

ORDERS

1. 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.

2. The applicant must pay the first respondent’s costs in the sum of $610.

3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 1 December 2005 reference N05/52209, or for review of the decision of the delegate of the first respondent dated 16 August 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 7 July 2005, shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 956 of 2008

SZHYM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The application in this matter was filed on 17 April 2008, and seeks judicial review under s.476 of the Migration Act of a decision of the Refugee Review Tribunal dated 9 November 2005 and handed down on 1 December 2005. The Tribunal refused an application for a protection visa made by the applicant on 7 July 2005, shortly after he arrived from Bangladesh.

2. The application was listed today at a first Court date.  The Minister has served at the address given by the applicant a notice of appearance, a response, and an affidavit detailing the applicant's previous litigation history.  A letter from the Minister’s solicitors warned the applicant that the Minister would today be seeking an order that his application be summarily dismissed with costs.

3. The applicant today denies receiving more than “a letter” from the Minister's solicitor, but I think it probable that he was aware of the Minister's intention. In any event, his application is, in my opinion, clearly without merit and an abuse of the Court's processes, and I propose to address it today under r.44.12(1)(a). The history set out in the documents filed by the Minister presents no surprises for the applicant. Also, the form of application which has been used by the applicant itself clearly warns that the application might be dismissed under that rule without a final hearing, if the applicant is unable to raise an arguable case for the relief claimed.

4. It is undoubted that the validity of the Tribunal's decision has been previously addressed.  Emmett FM fully reviewed the Tribunal's decision, and addressed grounds presented by the applicant after participation in the free legal advice scheme.  She dismissed his application (see SZHYM v Minister for Immigration [2007] FMCA 129). The applicant appealed to the Federal Court where he was represented by counsel, Dr Azzi. In a judgment handed down on

   
   13 June 2007

   , Mansfield J dismissed the appeal (see SZHYM v Ministerfor Immigration & Citizenship [2007] FCA 869). The applicant sought special leave to appeal to the High Court, and his application appears to have been settled by counsel. Kirby and Haydn JJ refused special leave in a decision which has been published as SYHYM v Minister for Immigration & Citizenship [2008] HCASL 30.

5. The present application was lodged within a short time of that outcome.  The application and affidavit only assert unparticularised allegations of denial of natural justice and failure to follow “due procedure of law”.

6. In my opinion, the application clearly does not raise an arguable case for the relief it claims.  Moreover, the evidence of the applicant's previous litigation indicates that he faces an insuperable objection to the obtaining of relief, under principles of res judicata or Anshun estoppel. 

7. It is not necessary under r.44.12(1)(a) for me to go so far as to characterise the present application as an abuse of process. However, the applicant today has been unable to suggest any justification for being allowed to commence a second round of litigation in relation to this Tribunal decision or, indeed, otherwise relating to his protection visa application. In the circumstances, I consider it also appropriate to direct the registry of this Court not to allow the filing of any further applications in relation to that visa application without first obtaining the leave of the Court.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  4 June 2008