SZIBU v Minister for Immigration

[2008] FMCA 116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 116

MIGRATION – Review of RRT decision – abuse of process.

SZIBU & Anor v Ministerfor Immigration [2006] FMCA 142
SZIBU & Anor v Ministerfor Immigration [2007] FCA 108
Port of Melbourne Authority Limited v Anshun (1981) 147 CLR 589
Wong v Minister for Immigration [2004] FCAFC 242

First Applicant: SZIBU

Second Applicant: SZIBV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3136 of 2007

Judgment of: Raphael FM

Hearing date: 30 January 2008

Date of last submission: 30 January 2008

Delivered at: Sydney

Delivered on: 30 January 2008

REPRESENTATION

Applicant in person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $2,200.00.

3. No further application for judicial review of the decision of the Refugee Review Tribunal N05/51726 signed on 28 November 2005 and handed down on 15 December 2005 to be made without leave of court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3136 of 2007

SZIBU

First Applicant

SZIBV

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There is brought before me today a notice of motion filed by the first respondent seeking summary dismissal pursuant to rr.13.10(b) and (c) of the Federal Magistrates Court Rules2001 of the application filed on 10 October 2007 in which the applicant sought review of a decision of the Refugee Review Tribunal signed on 25 November 2005 and handed down on 15 December 2005. There were two applicants for a protection visa, a husband and wife, and they are both applicants in this court. However, only the husband has appeared today.

2. The decision of the Refugee Review Tribunal has been considered by this Court on a previous occasion when Emmett FM dismissed an application for review; SZIBU & Anor v Ministerfor Immigration [2006] FMCA 1420 (11 September 2006). The applicant to that decision appealed to the Federal Court where on 13 February 2006 Cowdroy J dismissed the appeal; see SZIBU & Anor v Ministerfor Immigration [2007] FCA 108 (13 February 2006). The applicant then sought special leave of the High Court to appeal the decision of Cowdroy J but leave was declined on 4 October 2007 by Heydon and Kirby JJ.

3. Six days later the applicant filed this application, alleging that the Tribunal interpreted the Refugee Convention incorrectly and suggesting there was a miscarriage of justice in the previous proceedings, in that there was a substantial argument that was missed which was whether the Refugee Review Tribunal made an error of law when it interpreted the Refugees Convention 1951. With the greatest respect to the applicant, if this was a matter of such concern to him one wonders why it was not raised before Emmett FM, Cowdroy J or Kirby and Heydon JJ. Failure to raise a matter that could have been raised in proceedings previously is generally considered to be a bar to any rehearing of those proceedings: Port of Melbourne Authority Limited v Anshun (1981) 147 CLR 589.

4. The first respondent to the application argues in his helpful written submissions that to bring this matter back to the court again constitutes an abuse of process and that in any event the decision is one to which the doctrine of res judicata applies. I would respectfully agree with that submission: Wong v Minister for Immigration [2004] FCAFC 242 at [36]. This being the case, the application before me, if it was heard, has no prospect of success and is tantamount to an abuse of the processes of the court.

5. I asked the applicant why he believed I should consent to hear the matter and he told me that he had many problems in India and that if he went back he would be killed. He has lots of troubles there and wished me to refer the matter back to the Tribunal so he could explain them to it. This is unfortunately not possible under our system which believes that all litigation must eventually come to an end. The first respondent also argues that the applicants should be prohibited from lodging any further judicial review application in respect of the Tribunal decision of 25 November 2005 without an order of the Court. I think that is a reasonable request in the circumstances and I will so order.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  8 February 2008