SZIHC v Minister for Immigration

[2008] FMCA 900

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 900

MIGRATION – RRT decision – second application for judicial review – res judicata from previous judgment – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), s.476

SZIHC v Minister for Immigration & Citizenship & Anor [2008] HCASL 51
SZIHC v Minister for Immigration & Citizenship [2007] FCA 1254
SZIHC v Minister for Immigration & Anor [2007] FMCA 709

Applicant: SZIHC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 952 of 2008

Judgment of: Smith FM

Hearing date: 24 June 2008

Delivered at: Sydney

Delivered on: 24 June 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms M Regidor

Solicitors for the Respondents: Sparke Helmore

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 $1,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 952 of 2008

SZIHC

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 17 April 2008, in which the applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal handed down on 17 October 2006.

2. The decision of the Tribunal has previously been reviewed under s.476 of the Migration Act. Turner FM dismissed an application on 24 May 2007 (see SZIHC v Minister for Immigration & Anor [2007] FMCA 709). His Honour addressed numerous grounds of review covering the gamut of jurisdictional error, and was not persuaded by any of them. They were presented by an experienced solicitor on behalf of the applicant. His Honour held:

   32.The Court finds that the decision [of the Tribunal] is a privative clause decision that has not been infected with jurisdictional error.  In such circumstances and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere. 

3. His Honour’s decision was upheld by Marshall J, after hearing submissions from the applicant’s solicitor (see SZIHC v Minister for Immigration & Citizenship [2007] FCA 1254). The applicant sought special leave to appeal to the High Court, but this was refused by Kirby and Heydon JJ on 27 March 2008 (see SZIHC v Minister for Immigration & Citizenship & Anor [2008] HCASL 51). Their Honours said that the applicant had not demonstrated that an appeal would have any prospect of success.

4. The applicant’s present application repeats verbatim the grounds which had been presented to Turner FM. The application was adjourned at the first court date to today, after I invited the applicant to consider how principals of estoppel might prevent him from bringing a second application.

5. The applicant has filed an outline of submissions attaching parts of the transcript of the hearing held by the Tribunal, and lengthy submissions seeking to argue various legal, factual and merits errors in the reasoning of the Tribunal. However, nowhere does his submission address principals of res judicata, nor point to reasons why he should be permitted to raise new issues if there is no strict estoppel.

6. In my opinion, the application is doomed to failure by reason of the finding of Turner FM that the Tribunal’s decision is a privative clause decision. Even if there is no res judicata, principles of Anshun estoppel and abuse of process would, in my opinion, undoubtedly result in the dismissal of this application if I allowed it to proceed to a final hearing.

7. All of the arguments which the applicant now appears to wish to put forward, and in particular his claim that the Tribunal conducted proceedings so as to give rise to an apprehension of bias, have previously been addressed by Turner FM, or should have been put to him if there was any arguable merit in them.

8. I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate today to dismiss the application under r.44.12(1)(a).

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  2 July 2008