SZIHU v Minister for Immigration & Anor (No.2)
[2007] FMCA 1681
•20 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIHU v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 1681 |
| 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 the applicant a protection visa – applicant is a citizen of Pakistan claiming fear of persecution – 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. |
| Migration Act 1958 (Cth), s.424A Federal Magistrates Court Rules 2001, r.13.10 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZIHU v Minister for Immigration & Anor [2006] FMCA 1226 SZIHU v Minister for Immigration & Multicultural Affairs & Anor [2006] FCA 1765 SZIHU v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 381 |
| Applicant: | SZIHU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2520 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
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms Kantaria |
| Solicitors for the Respondents: | Clayton Utz |
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 $1,350.00.
The applicant is restrained from commencing any further proceedings for judicial review of the decision of the Refugee Review Tribunal signed on 3 January 2006 and handed down on 24 January 2006 without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2520 of 2007
| SZIHU |
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 a decision by a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs, to use the title that applied at the time, and a decision of the Refugee Review Tribunal refusing to grant the applicant a protection visa. In addition, there is an application for a declaration that the notification by the delegate of the decision made on 17th October 2005 and the Tribunal of a decision signed on 3rd January and handed down on 24th January in that year, affirming the delegate's decision not to grant a protection visa to the applicant is invalid and of no effect.
The applicant seeks a Writ of Certiorari quashing the decisions of both the Minister's delegate and the Refugee Review Tribunal, and an order in the nature of prohibition that no action be taken to remove the applicant from Australia while a decision is pending.
However, the lawyers for the Minister for Immigration & Citizenship oppose the application and submit:
i)That there is no jurisdictional error in the Tribunal's decision;
ii)That the proceedings are vexatious and the Court should dismiss the application under the provisions of rule 13.10 of the Federal Magistrates Court rules as an abuse of process;
iii)In the alternative, they claim that the applicant is barred by the doctrine of res judicata and/or is estopped from bringing these proceedings.
The applicant is a citizen of Pakistan who applied for a protection visa in Australia. The Minister's delegate refused his application on
17th October 2005 and the applicant sought review of that decision by the Refugee Review Tribunal, which made a decision affirming the decision of the delegate.
The applicant claims in his affidavit that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction, or denied him procedural fairness in that it failed to investigate his genuine claim under the requirements of the Migration Act.
In addition the applicant claims that the decision made by the Tribunal falls within the application of the decision of the High Court of Australia in the matter of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, where the Court made a new ruling about the definition of s.424A of the Migration Act.
The applicant also says in paragraph 5 of his affidavit:
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 the sake of natural justice that my application be allowed for filing with extension of time. RRT file number N05-52593.
On its face that argument has a significant flaw. It is not correct to say that the decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (supra) was not in force at the time that the applicant's application was before the Court.
The High Court handed down its decision in SAAP on 18th May 2005. At that stage the applicant had not even applied for a protection visa. The Tribunal decision was made in January 2006. If the applicant wished to rely on the decision of the High Court of Australia in SAAP in any proceedings for review, the decision was most certainly in force.
The Minister opposes the application on the basis that it is vexatious and an abuse of process. The response is supported by an affidavit sworn by Saloni Kantaria, solicitor, on 29th August 2007. In her affidavit Ms Kantaria sets out a concise litigation history.
On 27th September 2005 the applicant applied for a protection visa. The delegate of the Minister made a determination not to grant the applicant a protection visa on 17th October 2005. The applicant then, on 1st November 2005, applied to the Refugee Review Tribunal for a review of that decision. The decision of the Tribunal was handed down on 24th January 2006, affirming the delegate's decision.
The applicant then, on 9th February 2006, filed an application with the Federal Magistrates Court for judicial review of a decision of the Refugee Review Tribunal. On 15th August 2006 Federal Magistrate Smith dismissed the application[1]. The applicant then, on 1st September 2006, appealed from the decision of the Federal Magistrates Court. That appeal came before Downes J, exercising the jurisdiction of the Full Court of the Federal Court. On 20th November 2006 his Honour dismissed the applicant's appeal.[2]
[1] SZIHU v Minister for Immigration & Anor [2006] FMCA 1226
[2] SZIHU v Minister for Immigration & Multicultural Affairs & Anor [2006] FCA 1765
The applicant then, on 12th December 2006, filed an application for special leave to appeal to the High Court of Australia. On 13th August 2007 Gummow and Heydon JJ dismissed the application for special leave.[3] The applicant then, on 16th August 2007, filed his application for judicial review in the Federal Magistrates Court.
[3] SZIHU v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 381
It is quite clear from the history of this matter that the application for judicial review is vexatious and is an abuse of process. The applicant's case seeking review of the decision of the Refugee Review Tribunal has already been litigated in the Federal Magistrates Court. It has been appealed and an application for special leave to appeal has been dismissed. The reliance on the decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs is spurious.
Had the applicant wished to rely on that decision he had ample opportunity to do so when the matter was heard before his Honour Federal Magistrate Smith on 15th August 2006.
The application therefore must be dismissed as an abuse of process and it will be dismissed with costs. It is also appropriate to make an order restraining the applicant from commencing any further proceedings for judicial review of the decision of the Refugee Review Tribunal signed on 3rd January 2006 and handed down on 24th January 2006 without leave of the Court, and I intend to make that order.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 3 October 2007
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