SZIAZ v Minister for Immigration

[2008] FMCA 741

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 741

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), s.476

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZIAZ v Minister for Immigration & Citizenship & Anor [2008] HCASL 82
SZIAZ v Minister for Immigration & Citizenship [2007] FCA 1145
SZIAZ v Minister for Immigration & Anor [2008] FMCA 240

Applicant: SZIAZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1030 of 2008

Judgment of: Smith FM

Hearing date: 27 May 2008

Delivered at: Sydney

Delivered on: 27 May 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms E Warner Knight

Solicitors for the Respondents: Australian Government Solicitor

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 $1,000. 

3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 20 December 2005 reference N05/52575, or for review of the decision of the delegate of the first respondent dated 25 October 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 27 September 2005, shall be accepted for filing without prior leave of the Court. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1030 of 2008

SZIAZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 23 April 2008, in which the applicant seeks review under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 8 December 2005 and handed down on 20 December 2005. The application was returnable at a first court date today.

2. Prior to today, the Minister has given the applicant notice by way of a response and letters, indicating that the Court would be asked to dismiss the application today, on the ground that its absence of merit is demonstrated from previous litigation engaged in by the applicant in relation to the same Tribunal decision.

3. In that litigation, Emmett FM dismissed an application for judicial review on 9 March 2007 (see SZIAZ v Minister for Immigration & Anor [2008] FMCA 240). An appeal from her Honour was dismissed by Lindgren J (see SZIAZ v Minister for Immigration & Citizenship [2007] FCA 1145). His Honour, as had Emmett FM, reviewed the legality of the Tribunal’s decision. He concluded:

   27There is no ground shown for thinking that the Tribunal’s decision was infected by jurisdictional error.  It follows that that decision was a privative clause decision and that the present appeal should be dismissed with costs. 

4. An application for special leave was refused by the High Court on 28 March 2008 (see SZIAZ v Minister for Immigration & Citizenship & Anor [2008] HCASL 82).

5. The present application was filed shortly after that outcome. The application does not contain any particulars of any ground of review that has not previously been addressed, and the affidavit in support follows a spurious precedent which incorrectly contends that SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 was decided after the applicant’s previous litigation.

6. In my opinion, the present application does not raise an arguable case for the relief which is sought. It is, moreover, doomed to fail on principles of res judicata, due to the previous finding that the Tribunal’s decision was a privative clause decision. Principles of Anshun estoppel would also defeat the applicant.

7. Today, the applicant referred to his continuing fears of return to India, and his hopes that he would receive a further hearing from the Tribunal. However, he could point to no matter which could justify the bringing of the present application to this Court.

8. I therefore dismiss the application under r.44.12(1)(a).

9. In view of the applicant’s history of litigation and the abusive nature of the present application, I consider it appropriate also to direct the Registry of this Court not to receive any further application relating to the applicant’s 2005 protection visa application without the prior leave of the Court.

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

Associate:  Lilian Khaw

Date:  5 June 2008