SZJAW v Minister for Immigration
[2008] FMCA 1496
•28 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJAW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1496 |
| MIGRATION – RRT decision – second application for judicial review – no arguable case – application dismissed at first court date. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), s.476 |
| SZJAW v Minister for Immigration & Citizenship No 2 [2007] FCA 977 SZJAW v Minister for Immigration & Citizenship [2007] FCA 976 SZJAW v Minister for Immigration & Anor [2007] FMCA 60 |
| Applicant: | SZJAW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2560 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 28 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2560 of 2008
| SZJAW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed on 3 October 2008, which seeks judicial review under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 13 June 2006 and handed down on 22 June 2006. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
The Tribunal interviewed the applicant, and considered his claims to fear persecution as a result of political activities in Pakistan. The Tribunal accepted that the applicant was a supporter of the party which he identified, but did not accept that he had any role in the party which would have brought him to the notice of political or religious elements opposed to this party. It did not accept his claims of past persecution, and did not believe that there was a real chance he would suffer harm if he returned.
The validity of the Tribunal’s decision has already been addressed in litigation under the same jurisdiction which the applicant now seeks to invoke for a second time. Barnes FM dismissed his first application on 22 January 2007 (see SZJAW v Minister for Immigration & Anor [2007] FMCA 60). Her Honour considered numerous grounds alleging jurisdictional error, but held that the applicant had not established that the Tribunal fell into any jurisdictional error.
An application for an extension of time to appeal to the Federal Court was dismissed by Emmett J on 7 May 2007 (see SZJAW v Minister for Immigration & Citizenship [2007] FCA 976). His Honour gave a law student leave to appear to represent the applicant, and considered numerous arguments presented by or on behalf of the applicant. He was not persuaded that any of them showed jurisdictional error affecting the decision of the Tribunal, or error by Barnes FM in dismissing the application. Although the delay in seeking to appeal was short, Emmett J said that “nothing has been advanced on behalf of the applicant to suggest that there is even a slight prospect of success in the appeal. There is, therefore, no utility in extending the time…”.
Because the applicant was unrepresented and without an interpreter at the time his judgment was given, Emmett J gave a stay on his orders, to enable the applicant to get further advice. The applicant then presented further written submissions raising a new ground of appeal. However, Emmett J considered that it had no prospects of success, and confirmed his previous orders (see SZJAW v Minister for Immigration & Citizenship No 2 [2007] FCA 977).
The present application before the Court makes general assertions of a lack of procedural fairness on the part of the Tribunal and failure to consider claims, without providing any particulars raising any arguable ground. Moreover, in my opinion principles of res judicata or Anshun estoppel present insuperable difficulties for the applicant’s present application. The applicant has pointed to nothing which could justify allowing him to bring a second application for judicial review.
The applicant has received notice before today’s first court date that the Minister would be seeking summary dismissal of the application today on the grounds of his previous litigation. In my opinion, in the above circumstances it is appropriate to dismiss the application under r.44.12(1)(a) today.
The applicant objected to that course on the ground that he wishes to obtain further legal advice, and is also still fearful of events in Pakistan. However, in my opinion the applicant has had more than enough opportunities to obtain legal advice about the Tribunal’s decision. The recent events in Pakistan could not provide him with any ground for obtaining relief from the Court.
I therefore shall dismiss the application today.
In relation to costs, the Minister seeks indemnity costs. A warning of this application was contained in the letter sent to the applicant on 14 October 2008. However, I am not persuaded that I should make such an order. I have not found it necessary to rule whether the present application is, in fact, an abuse of process. The applicant today appeared genuinely to believe that he could further litigate his matter, and this is his first attempt to do this. Considering all the circumstances, I am not persuaded to make an indemnity order against the applicant today. However, if he brings further hopeless applications to the Court, he will risk incurring less indulgent costs orders from the Court.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 5 November 2008
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