SZICT v Minister for Immigration & Anor (No.2)
[2007] FMCA 1747
•20 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZICT v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 1747 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protected visa to the applicant – applicant is a citizen of Pakistan claiming fear of persecution for reasons of his religion and political opinion – abuse of process – where application already heard and decided. PRACTICE & PROCEDURE – Abuse of process – where application for review previously heard and decided – application dismissed as an abuse of process – application has no reasonable prospects of success. |
| Judiciary Act 1903 (Cth), ss.39B, 44C Migration Act 1958 (Cth), s.424A Federal Magistrates Court Rules 2001 r.13.10 |
| SZCTH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1528 Alam v Minister for Immigration [2004] FMCA 583 Minister for Immigration and Multicultural and Indigenous Affairs v Alam [2005] FCAFC 132 Chan Ta Srey v Minister for Immigration & Multicultural Affairs [2003] FCA 1292 NAMG v Minister for Immigration & Multicultural Affairs [2003] FMCA 541 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZICT v Minister for Immigration & Anor [2006] FMCA 915 SZICT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1144 SZICT v Minister for Immigration & Multicultural & Anor [2007] HCA Trans 343 SZIHU v Minister for Immigration & Anor [2007] FMCA 1681 |
| Applicant: | SZICT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2557 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 September 2007 |
| Date of Last Submission: | 20 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2007 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitor for the Respondents: | Ms B. Anniwell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 as an abuse of process.
The applicant is to pay the first respondent’s costs fixed in the sum of $1,000.00.
The applicant is restrained from commencing any further proceedings for judicial review of the decision of the Refugee Review Tribunal signed on 28 November 2005 and handed down on 15 December 2005 without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2557 of 2007
| SZICT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The substantive application before the Court is an application for judicial review of both the notification by the delegate of the Minister and the decision of the Refugee Review Tribunal to refuse to grant the applicant a protection visa.
More particularly, the applicant in this case seeks the following orders:
a)an order or declaration that the notification by the delegate and the Tribunal to refuse to grant the protection visa is invalid and has no effect to s. 44C if the Judiciary Act 1903 (Cth);
b)a writ of certiorari quashing the decision of the Department of Immigration & Multicultural Affairs or the Refugee Review Tribunal;
c)an order that no action is taken to remove the applicant from Australia while the decision is pending.
The application is opposed by the solicitors for the Minister on the grounds that there have been other judicial review proceedings in relation to the decision of the Refugee Review Tribunal, and the applicant has not raised an arguable case for the relief claimed.
The applicant claims that relief should be granted on three grounds:
a)a breach of rules of natural justice occurred in connection with the making of the decision. DIMA and RRT made an error of law when they failed to comply with s. 424A of the Migration Act;
b)
the application is not a vexation nor the abuse of process.
A delegate decision can be reviewed by the Court under certain circumstances. The Court previously reviewed the decision by the delegate in the matter of SZCTH v Minister for Immigration[1], Alam v Minister for Immigration & Multicultural Affairs[2], and NAMG v Minister for Immigration & Multicultural Affairs[3];
c)the application is late, however the application refers to Chan Ta Srey v Minister for Immigration & Multicultural Affairs[4].
[1] Presumably SZCTH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1528
[2] Presumably Alam v Minister for Immigration [2004] FMCA 583, but see also Minister for Immigration and Multicultural and Indigenous Affairs v Alam [2005] FCAFC 132
[3] [2003] FMCA 541
[4] [2003] FCA 1292
In an affidavit in support sworn 20th August 2007, the applicant, who claims to be a Pakistani citizen by birth, deposes that he came to Australia and applied for a protection visa. He sets out that a delegate of the Minister refused to grant his protection visa, so he applied for review in the Refugee Review Tribunal. He claims that the Tribunal exceeded its jurisdiction, or constructively failed to exercise its jurisdiction, or denied him procedural fairness, and that the Tribunal failed to investigate his genuine claim under the requirements of the Migration Act. He also claims that the decision made by the Tribunal falls within the application of the High Court decision in the matter of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[5] where the Court made a new ruling about the definition of s. 424A of the Migration Act.
[5] [2005] HCA 24
He goes on to say:
I would like to seek leave from the Court to make this new line of argument on the basis that at the time of my matter before the Court the decision of SAAP was not in force and therefore there was a miscarriage of justice. I believe that it is important for sake of natural justice that my application be allowed for filing with extension of time. RRT file no 5-52437 attached.
Contrary to what the applicant claims, the application is an abuse of process. Also contrary to what the applicant claims, the decision of the High Court of Australia does not set out any new ruling about the meaning of s. 424A of the Migration Act that was not in force at the time of the Tribunal hearing. The fact is that the High Court handed down its decision on 18th May 2005 in SAAP. The applicant was not notified of the decision of the delegate to refuse him a visa until
18th August 2005, and his application for review was lodged with the Tribunal on 31st August 2005. The Tribunal signed its decision on
28th November 2005 and handed that decision down on 15th December 2005. All of those matters post-dated the handing down of the decision by the High Court in SAAP.
What the applicant appears to have overlooked is that it was possible for him to have argued any breach of s. 424A of the Migration Act, relying on the decision in SAAP, in the proceedings for judicial review which he took. On 16th January 2006 the applicant filed an application for judicial review in the Federal Magistrates Court of Australia at Sydney. The application was dismissed, with costs, by Smith FM on 13th June 2006 (see SZICT v Minister for Immigration & Anor[6]).
The applicant then on 26th June 2006 filed an application for leave to appeal in the New South Wales District Registry of the Federal Court of Australia seeking to appeal against Smith FM’s judgment. On 16th August 2006 Jacobson J dismissed the application for leave to appeal, with costs (see SZICT v Minister for Immigration & Multicultural & Indigenous Affairs[7]).
[6] [2006] FMCA 915
[7] [2006] FCA 1144
The applicant then on 7th September 2006 applied to the High Court of Australia for special leave to appeal from the judgment of Jacobson J. The application for special leave to appeal was dismissed by Kirby and Callinan JJ on 1st August 2007 (see SZICT v Minister for Immigration & Multicultural Affairs & Anor[8]).
[8] [2007] HAC Trans 343
Undaunted by this string of refusals, the applicant then on 20th August 2007 brought a fresh application for review in the Federal Magistrates Court. It is clearly an abuse of process. It is the second one of this type that has been before the Court this morning and the applications and the affidavit are almost identical. Needless to say, the fate of this application will be identical to the fate of the earlier application.
This is an application that is an abuse of process. The applicant’s wish to seek judicial review of the decision of the Refugee Review Tribunal has been well and truly litigated in the Federal Magistrates Court and in the Federal Court with an application for leave to appeal, and an application for special leave to appeal to the High Court of Australia has been dismissed. There are no grounds for commencing fresh proceedings, and the application will be dismissed as an abuse of process. I propose to dismiss the application with costs.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 4 October 2007
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