SZIER & Anor v Minister for Immigration
[2008] FMCA 619
•18 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIER & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 619 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZIER”and “SZIES”. |
| Migration Act 1958 (Cth), ss.91X, 476 |
| Attorney‑General v Wentworth (1988) 14 NSWLR 481 Bride v Campbell–Smith [2004] FMCA 848 SZIER & Anor v Minister for Immigration [2006] FMCA 1935 SZIER v Minister for Immigration [2007] FCA 611 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 |
| First Applicant: | SZIER |
| Second Applicant: | SZIES |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 423 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 18 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | The applicants appeared in person and was assisted by a Gujarati interpreter. |
| Solicitors for the Respondent: | Ms E Warner-Knight of Australian Government Solicitors |
ORDERS
The application filed on 22 February 2008 is dismissed.
The applicants are to pay the first respondent's costs fixed in the sum of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 423 of 2008
| SZIER |
First Applicant
| SZIES |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
According to the Protection (Class XA) visa application the applicants are nationals of India. The first named applicant, the husband, is a Hindu, was educated for ten years and speaks, reads and writes three Indian languages. He was a salesman in India before becoming self‑employed in a business called Mehta Enterprises. The second named applicant was also educated for ten years, speaks Gujarati and was a housewife prior to coming to Australia. The applicants have two children, a 10‑year‑old daughter and a six‑year‑old son, both of whom are residing in India. The first named applicant applied for a Protection visa on the basis that he was a refugee and the second named applicant applied on the basis that she is a family member of a person claiming to be a refugee.
The foundation of the applicant’s claim at first instance was that the applicant feared persecution because his business had been targeted by “thugs” demanding money from him. It is alleged that the police failed to properly respond to these complaints, thereby encouraging the “thugs”. This caused the applicant and his wife to leave India. They left behind two young children, who are still living in India. The applicants claim the children were refused visas and therefore did not come with their parents to Australia. The Tribunal searched for the details of these visa applications but no records were available. The applicant’s wife did not claim persecution and as a result the Tribunal investigated the reasons for her departure to Australia.
At the hearing before the Tribunal the applicant claimed to be unwell. Consequently, a procedure was proposed to the applicant whereby the wife could provide evidence at the hearing and the applicant would then have an opportunity to later comment on the tape‑recording. However, when the hearing proceeded the applicant remained present, interrupted and gave evidence from time to time. Essentially, the Tribunal rejected the application on the ground that any violence was directed at the applicant or his business and found the application was not based on any Convention ground. Although it was mentioned that the “thugs” were Islamic and the applicant was Hindu, no religious element appears to be relevant. Thus, the claim was rejected on the facts and the rejection was unimpeachable.
The applicants arrived in Australia on 12 September 2005 and applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 18 October 2005. A delegate decided to refuse to grant the visa on 6 January 2006 and the applicants applied to the Tribunal on 11 February 2006 to review the delegate's decision. This was subsequently rejected by the Tribunal, which is the decision of Ms Mila Males, with reference number N0653136.
The present application in this matter was filed on 22 February 2008 and seeks an order that the respondent show cause why the remedy should not be granted under s.476 of the Migration Act1958 (“the Act”) in respect of the decision of the Refugee Review Tribunal signed on 27 June 2005 by Ms Males. That decision has been subsequently reviewed by his Honour Smith FM, in the decision in SZIER & Anor v Minister for Immigration [2006] FMCA 1935. His decision was affirmed by his Honour Ryan J in the decision of SZIER v Minister for Immigration [2007] FCA 611. A special leave application to the High Court before their Honours Kirby and Hayden JJ was dismissed on 7February 2008. In that decision his Honour Kirby J stated:
It was inevitable that the application for judicial review would fail, as it did before both Smith FM and Ryan J. No legal or jurisdictional error is apparent. No convention ground is apparent. The applicant and his wife have no arguable basis for their claim against Australia, based on the Convention protocol given effect by the Act. An appeal to this Court would have not any prospects of success.
A response in these proceedings was filed by the first respondent, indicating that this Court lacked jurisdiction to hear the application under r.44.06(2)(a). The following particulars were listed:
(a) The decision of the second respondent which is the subject of this proceeding has already been reviewed by this Honourable Court in proceedings SYG2256/06. The matter was determined after a final hearing. See judgment of Smith FM in SZIER and Anor v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 1935.
(b) The present application should be dismissed upon the basis that the dismissal of the application before Smith FM creates a res judicata, or alternatively an issue estoppel with respect to the present application.
As I have already alerted to, the application has not attempted, by way of particulars or evidence, to outline any meaningful grounds for review. In effect, the grounds listed by the applicant do not address the decision subject to judicial review but instead focus on revisiting the issues which were raised in the applicant's original Protection visa application and at the previous Tribunal hearing. Therefore, the application is obviously untenable and manifestly groundless as to be utterly hopeless, as well as being without reasonable grounds and having a collateral purpose.
Taking into account the litigation history summarised above, the applicants have habitually and persistently pursued proceedings related to the decision regarding their application for a Protection visa. Consequently, the application is frivolous and vexatious in the terms described in Bride v Campbell–Smith [2004] FMCA 848, per McInnes FM taken from the decision of the Attorney‑General v Wentworth (1988) 14 NSWLR 481, per Roden J, at [49]. It is not surprising that it was contended on behalf of the Minister that the application was precluded by the principles of res judicata, issue estoppel and abuse of process. There could not be a clearer case for the application of these principles and there is no hint of any basis for avoidance of that. It is sufficient to refer to the decision of the Full Court in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [36]-[39]. Special leave was refused in that particular case on 4 February 2005. This proceeding is a transparent attempt to relitigate the same matter that was previously litigated.
As previously referred to, I have referred to the grounds of review in this application. These grounds are:
1. The RRT denied proper application of law to the applicant. The matter was not dealt with by the court properly before.
2. The RRT denied natural justice to the applicant. S424A, s424B of the Act [were] breached.
3. The RRT did not follow due procedure. It failed to invite the applicants for a meaningful hearing.
I refer to the Tribunal hearing conducted by Ms Males. On page 5 of that decision a heading appears, "Invitation of Comment on Information". Following over the next two and a half pages, is a detailed description of the questions asked of the applicants, with the following comment at the end of that:
Both applicants were invited to comment on the information in writing by 3 April 2006. On 27 March 2006 the applicants wrote to the Tribunal requesting another month or more to respond to the invitation, so that they could collect “proof”.
Unfortunately due to the member’s (Ms Male’s) absence, the Tribunal was not able to respond to the letter before the comments were due. The member subsequently decided to refuse the extension but invited the applicants to appear before it to give evidence and present argument on 11 May 2006. This indicates that this provision of the Act was complied with.
The Tribunal then outlines under the next subheading, "Tribunal Hearing 11 May 2006" the procedural and non-procedural issues that occurred at the Tribunal hearing.
At Court today, the applicant’s wife produced written submissions consisting of 14 typed pages, which is headed, "Applicants' Submission on Competency". This contains a long statement of various aspects of administrative review, relying on a number of authorities from both the Australian and the British Courts. This document has been seen on a number of previous occasions and does not specifically address the issues raised by the applicant in the original protection visa application before the Tribunal, this Court, before his Honour Smith FM or the superior Courts of the Federal Court and the High Court. Regretfully, this document does not advance the applicants' application for further judicial review of this matter before this Court.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
14 May 2008
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