SZIKW v Minister for Immigration

[2007] FMCA 2121

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIKW & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2121

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal functus officio – claim not arguable – proceedings vexatious and an abuse of process.

Federal Magistrates Court Rules 2001, rr.13.10, 44.12

Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 SZASP v Minister for Immigration & Citizenship [2007] FCA 771

First Applicant: SZIKW

Second Applicant: SZIKX

Third Applicant: SZIKY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3373 of 2007

Judgment of: Cameron FM

Hearing date: 10 December 2007

Date of last submission: 10 December 2007

Delivered at: Sydney

Delivered on: 10 December 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Pursuant to r.13.10 the application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $1,919.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3373 of 2007

SZIKW

First Applicant

SZIKX

Second Applicant

SZIKY

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this case the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 8 October 2007. The basis of the claim for persecution can be gleaned from the application filed in this Court where the following matters are particularised:

   (a)The tribunal did not consider the applicant who had been under immense and intimidating pressure from his own family members.

   (b)In relation to above the tribunal did not consider the applicant’s claim that his family members will kill him if he returns to India.

   The Tribunal concluded that it did not have jurisdiction to entertain the applicants’ application for review. 

2. The matter is before the Court today on the applicants’ application that the respondents show cause why relief should not be granted to the applicants. 

3. In the application the following grounds are pleaded:

   (1)That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or “integers” central to the applicant’s claims.

   (2)The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

4. It has also been raised in argument today that the first applicant was incorrectly described in the Tribunal’s decision record as having been born in Bangladesh. 

5. The first respondent submits that the applicants:

   a)have no arguable case;

   b)have brought proceedings which are an abuse of process;

   c)have brought proceedings which are frivolous and vexatious; and

   d)have brought proceedings which have no reasonable prospects of succeeding. 

6. At a hearing to determine whether an order to show cause will be made, the order will not be made and instead, the proceedings will be dismissed pursuant to r.44.12 of the Rules of Court, if the applicant does not have an arguable case against the respondent. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action can be clearly demonstrated, where the claim is groundless, or where there is a high degree of certainty about the outcome.

7. The proceedings may also be dismissed under r.13.10 of the Rules of Court if they have no reasonable prospects of success, are frivolous or vexatious, or are an abuse of process.

8. The facts relevant to these proceedings are set out in the affidavit of Megan Louise Palmer sworn 15 November 2007 and in the annexures to that affidavit. The chronology of events relevant to these proceedings as derived from Ms Palmer’s affidavit is as follows:

   a)on 28 October 2005 the Minister’s delegate refused the applicants’ applications for protection visas;

   b)on 21 February 2006 the Tribunal affirmed the delegate’s decision;

   c)on 19 April 2006 Driver FM dismissed the applicants’ application for judicial review of the Tribunal decision;

   d)on 3 November 2006 Mansfield J, in the Federal Court, dismissed the appeal the applicants brought from the decision of Driver FM; 

   e)on 6 September 2007 the applicants’ application for special leave to appeal to the High Court was refused; 

   f)on 28 September 2007 the applicants lodged a further application for review with the Tribunal (it should be noted that that review application was in respect of the original decision of the delegate made in 2005); and

   g)on 8 October 2007 the Tribunal signed its decision which is the subject of these proceedings.

9. These proceedings were commenced on 31 October 2007. 

10. In this case it is clear that the applicants’ action is certain to fail because the Tribunal was correct to conclude that it was functus officio and had no jurisdiction to entertain a second application to review the delegate’s decision made in 2005. So much is made clear by the decisions of the High Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 and the decision of Goldberg J in Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301. Those decisions are also referred to by Moore J in SZASP v Minister for Immigration & Citizenship [2007] FCA 771 at [4].

11. As to the error by the Tribunal where it refers to the first applicant’s country of birth as being Bangladesh, such error is a matter of no consequence in these proceedings as the matter of relevance is whether the Tribunal had jurisdiction to entertain the application which had been made to it. As it had no jurisdiction to entertain the application, the fact that it may have made an error of fact of that nature does not mean that it has been guilty of jurisdictional error, which is the only basis upon which the Tribunal’s decision could be set aside. Consequently, I conclude that the applicants’ claim is not arguable.

12. However, regardless of whether the applicants’ case is arguable or not, there remains the issue of r.13.10. This is more than a case where an applicant has failed to demonstrate an argument which justifies the respondent having to go into evidence. This is a case where the applicants have already enjoyed the benefit of a Tribunal review and the judicial review and appeal processes which were available consequent upon a Tribunal decision. Not being satisfied either with the Tribunal’s decision or, apparently, the outcomes of the subsequent judicial review and appeal process, the applicants have brought further proceedings against the Minister when their claims to be entitled to protection visas have already been finally determined. It is vexatious of a litigant to force or to require another party to come to court when the matters in issue have already been finally determined. It is also an abuse of the process of the Court.

13. Consequently, pursuant to r.13.10 the application will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  21 December 2007