SZIKG v Minister for Immigration
[2008] FMCA 478
•8 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIKG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 478 |
| MIGRATION – RRT decision – second application for judicial review – ground previously addressed – no arguable case for relief – application summarily dismissed at first court date. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth) |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 SZBYRv Minister for Immigration & Citizenship (2007) 235 ALR 609 SZIKG v Minister for Immigration [2007] FMCA 337 SZIKG v Minister for Immigration & Citizenship [2007] FCA 788 SZIKG v Minister for Immigration & Citizenship [2008] HCA Trans 110 |
| Applicant: | SZIKG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 672 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 8 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms M Palmer |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
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.
The applicant must pay the first respondent’s costs in the sum of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 672 of 2008
| SZIKG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant filed an application on 20 March 2008, seeking judicial review of a decision of the Refugee Review Tribunal handed down on 2 February 2006. That decision affirmed a decision of a delegate made on 31 August 2005, refusing to grant the applicant a protection visa.
The jurisdictional validity of the Tribunal's decision has already been upheld in this Court by Raphael FM (see SZIKG v Minister for Immigration [2007] FMCA 337), and in the Federal Court by Tracey J (see SZIKG v Minister for Immigration & Citizenship [2007] FCA 788). The High Court has refused special leave to appeal from the orders made by those judges (see SZIKG v Minister for Immigration & Citizenship [2008] HCA Trans 110). The High Court's decision was given on 29 February 2008, so that the timing of the present application and its apparent lack of merit would suggest that it is a further round of litigation brought by the applicant to protract his stay in Australia.
The application was returnable at a first Court date before me today. The Minister has filed and served on the applicant a response, supported by an affidavit, which contends that not only does the application not raise an arguable case for the relief claimed, but that it is also an abuse of process and would be met by the doctrine of Anshun estoppel. The applicant has been warned by the Minister's lawyers, and has been provided with a written submission in support of summary dismissal, that the Court would be asked today to dismiss his case under r.44.12.
The applicant today asked for an adjournment of the Minister's application for summary dismissal, to allow him more time to get legal advice. He also says that he wishes to obtain more documents to establish his refugee status. However, I decline to grant the applicant’s request for an adjournment. I have taken into account the absence of any new contention which has not already been addressed, and the history of the matter pointing to an abuse of court processes. In my opinion, the applicant has had ample time to get legal advice as to jurisdictional errors affecting the Tribunal’s decision during his previous course of litigation, and I can see no prospect that he could obtain a legal representative who could resist the force of the Minister's submissions.
The application filed in this Court has only one ground, which is an unparticularised claim that the Tribunal “failed to investigate my genuine claims with the requirement of Migration Act 1958". His affidavit in support argues that he has a contention of a failure to follow s.424A of the Migration Act in the light of the High Court's decision in SAAP. However, SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 had been decided long before Raphael FM looked at the Tribunal’s decision.
Moreover, while Raphael FM accepted that there may have been a breach of s.424A in one respect, he found that the Tribunal's decision was supported by an alternative finding by the Tribunal that the harms claimed to have been suffered by the applicant lacked a Convention nexus. His Honour's reasoning received the support of Tracey J, and also is consistent with the later decision of the High Court in SZBYRv Minister for Immigration & Citizenship (2007) 235 ALR 609.
In my opinion, the grounds now presented by the applicant are grounds that have already been addressed, and would be doomed to fail even if I could be persuaded to address them in a second application. Moreover, I consider the Minister's contention that the applicant has shown no answer to a contention based on Anshun estoppel is also unanswerable.
In my opinion, this is a proceeding where the Court is able to be confidently satisfied that the application raises no arguable case for the relief claimed, and that it should be dismissed today under r.44.12(1)(a).
I certify that the preceding words eight (8) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 17 April 2008
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