SZIGA v Minister for Immigration & Anor
[2008] FMCA 107
•21 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 107 |
| MIGRATION – VISA – Protection visa – application for review of decision of Refugee Review Tribunal – where Tribunal decision has already been reviewed by the Court. PRACTICE & PROCEDURE – Abuse of process. |
| Migration Act 1958 (Cth), s.476 |
| SZIGA v Minister for Immigration & Anor [2006] FMCA 1641 SZEGA v Minister for Immigration & Citizenship (2007) FCA 289 SZCTH v Minister for Immigration (No.1) [2004] FMCA211 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZIGA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3937 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 January 2008 |
| Date of Last Submission: | 21 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 January 2008 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed as an abuse of process.
No further application for review of the decision of the Refugee Review Tribunal made on 21 December 2005 is to be accepted for filing without leave of the Court.
The applicant is to pay the First Respondent’s costs fixed in the sum of $1000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3937 of 2007
| SZIGA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is asking the Court to review a decision of the Refugee Review Tribunal made on 21 December 2005 and handed down on 17 January 2006. The decision of the Refugee Review Tribunal which is the subject of this application has already been reviewed. The decision was reviewed by the Federal Magistrates Court in an application heard on 3 November 2006. His Honour Lloyd‑Jones FM handed down decision on 5 December 2006. In that decision, his Honour dismissed the application with costs. The applicant appealed against that decision. The appeal was heard on 28 February 2007 by Buchanan J. His Honour dismissed the appeal with costs. The citation for the decision in the Federal Magistrates Court is SZIGA v Minister for Immigration & Anor [2006] FMCA 1641. The citation for the appeal decision is SZIGA v Minister for Immigration & Citizenship (2007) FCA 289.
According to his application, the applicant then sought special leave to appeal from the High Court of Australia. That application was dismissed on 6 December 2007. The applicant then commenced these proceedings on 28 December 2007.
The applicant sets out three grounds in his application. First, that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied him procedural fairness in that the tribunal failed investigate his genuine claims. That argument appears to have been argued in the applicant's earlier application, which was heard by Lloyd‑Jones FM on 3 November 2006. His Honour dealt with that issue and dismissed the application.
The applicant's second ground is:
This application is not vexation, not the abuse of process. A tribunal decision can be reviewed by the Court second time under certain circumstances. SZCTH v Minister for Immigration No. 1 (2004) FMCA 211.
That ground is just wrong. The Migration Act has been amended since 2004 quite significantly. The application is vexatious and it is an abuse of process.
The third ground is that the Tribunal applied the wrong test by requiring independent evidence of the facts before the tribunal would accept a claim. If that argument was not made before Lloyd‑Jones FM, and it appears to me that a version of it was, there was certainly the opportunity to do so. That third ground must fail.
In an affidavit which the applicant says was prepared for him by someone to whom he was introduced by a friend, the applicant, in paragraph 3, sets out a summary of the grounds in his application. The affidavit then goes on to say in paragraph 4:
The decision made by the tribunal falls within the application of High Court decision in the matter of SAAP, where the Court made new ruling about the definition of s. 424A of the Migration Act.
The applicant goes on to say in paragraph 5:
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.
The applicant told the Court that he did not know the identity of the person who had prepared this document before the Court and did not know whether that person was a lawyer or not. He told the Court that he had not paid the man to prepare this document. That is just as well, because the argument about SAAP is just wrong. It is totally misconceived and factually wrong. The decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24 was handed down by the High Court on 18 May 2005. Thus, it was in force at the time of the decision of the Refugee Review Tribunal the subject of this application. It was in force at the time that the Federal Magistrates Court heard the application for a hearing. It was in force when Buchanan J in the Federal Court heard the appeal. It was in force at the time that the High Court of Australia dismissed the application for special leave to appeal.
The applicant told the Court that he had fresh evidence. He had not brought that evidence with him, which he said was in the form of newspaper articles about his case. The reason why he did not bring the documents with him was that he had received a telephone call only four days ago indicating that they were on their way from India by courier. These documents were not referred to in the applicant's application filed on 28 December 2007, but he said that he was aware of their existence. Curiously, neither his application nor his affidavit make any reference to them. In any event, the Court does not have the jurisdiction to consider fresh evidence that was not before the Refugee Review Tribunal.
This application is entirely without merit and is quite clearly an abuse of process of the Court. It will be dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 5 February 2008
0