SZJBN v Minister for Immigration
[2008] FMCA 938
•8 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJBN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 938 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Applicant A & Anor v Minister for Immigration (1997) 190 CLR 225 SZJBN v Minister for Immigration and Citizenship [2007] FCA 868 |
| First Applicant: | SZJBN |
| Second Applicant: | SZJBO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1287 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 8 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2008 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms M Regidor Sparke Helmore |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by these applicants to review any migration decision relating to their protection visa application made on
23 December 2005, including the decision of the delegate made on
2 March 2006, and the decision of the Tribunal handed down on
20 June 2006 or any notification of those decisions, be accepted for filing in this Court, except by leave of a Federal Magistrate.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1287 of 2008
| SZJBN |
First Applicant
SZJBO
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 20 May 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was handed down on 20 June 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The decision has been the subject of previous judicial review proceedings in this Court and the Federal Court.
The applicants are from India and had made claims of religious and political persecution. They arrived in Australia on 22 November 2005. They applied to the Minister's Department for a protection visa on
23 December 2005. That application was refused by a delegate on
2 March 2006. They applied to the Tribunal on 20 March 2006 for review of the delegate's decision. The applicants were invited to a hearing before the Tribunal and the first applicant attended on 12 May 2006. He was questioned in detail about his claims. The Tribunal expressed doubt about those claims. The Tribunal said at page 13 of the Tribunal decision:
In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm, or that any harm he faced was essentially and significantly related to a Convention reason. In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any persecution as contemplated by the Convention or that there is a real chance that he would suffer such persecution in the reasonably foreseeable future. But even if the Tribunal were wrong about this conclusion, the Tribunal is satisfied that any harm suffered by the applicant is by non‑state agents. It is established law that the harm feared by an applicant must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Persecution by private individuals or groups does not bring a person within the Convention unless the State either encourages or is or appears to be powerless to prevent that private persecution.
The Tribunal considered relevant authority, including the High Court decision in Applicant A & Anor v Minister for Immigration (1997) 190 CLR 225. On the basis of independent country information, the Tribunal was satisfied that the applicant would be able to obtain state protection in India that would accord with international standards for any harm that he fears.
These proceedings began with a show cause application supported by an affidavit filed on the same day. The affidavit encloses the Tribunal decision which is before me. I also have before me an affidavit by Peter Snell made on 18 June 2008. That affidavit includes a chronology of the applicant's litigation history, which I incorporate into this judgment:
BACKGROUND
Applicant born in India 3 November 1973
Applicant arrived in Australia 22 November 2005
DIMA
Application for protection visa lodged 23 December 2005
Delegate’s decision 2 March 2006
TRIBUNAL
Application for review lodged 20 March 2006
Tribunal hearing 12 May 2006
Tribunal decision handed down 20 June 2006
FEDERAL MAGISTRATES COURT – SYG1968 of 2006
Application for judicial review lodged 17 July 2006
Orders of Smith FM dismissing application 8 February 2007
Interlocutory application 27 February 2007
Orders and Judgment of Smith FM dismissing
application 13 March 2007
FEDERAL COURT – NSD445 OF 2007
Application for leave to appeal 21 March 2007
Orders and judgment of Stone J dismissing application 5 June 2007
FEDERAL MAGISTRATES COURT – SYG1287 OF 2008
Application for judicial review lodged 20 May 2008
The Minister filed a response to the application on 24 June 2008.
The Minister seeks the summary dismissal of the application on the basis of estoppel and pursuant to Part 13 of the Federal Magistrates Court Rules 2001 (Cth). I ordered an immediate show cause hearing in the matter this morning.
The applicant seeks a further opportunity to agitate what he sees as errors in the Tribunal decision. However, the grounds in the application are rather generally expressed. There does not appear to me to be any issue raised that was not or could not have been raised in the earlier legal proceedings instituted in this Court and the Federal Court. The applicant seeks another opportunity to argue his case on what he sees is a better basis. However, he has already had three opportunities. He had an opportunity in this Court in his application filed on 17 July 2007. He failed to attend the hearing set down in this Court, and his application was dismissed for non‑appearance. He had a second opportunity when he applied for reinstatement of that application. He was unsuccessful[1]. He had a third opportunity when he sought leave to appeal to the Federal Court[2]. He was again unsuccessful. When dealing with the refusal of leave, Stone J said at [9]:
… the Federal Magistrate exercised his discretion to dismiss the reinstatement application because he did not believe the applicants' explanation for their failure to appear; because, even if that explanation were plausible, it would not justify setting aside the dismissal of the substantive application; and because, having undertaken an exhaustive analysis of the Tribunal's reasons and of the applicants' substantive arguments, he was not satisfied that those arguments could succeed. The Federal Magistrate's exercise of discretion is only reviewable by this Court if it is affected by an error, such as acting upon a wrong principle, being guided by an extraneous or irrelevant consideration, a mistake of fact or a failure to take a material consideration into account. … No such error is discernible in the Federal Magistrate's decision. Accordingly, the application must be dismissed with costs.
[1] SZJBN & Anor v Minister for Immigration & Anor [2007] FMCA 434
[2] SZJBN v Minister for Immigration and Citizenship [2007] FCA 868
The applicant contends that the earlier decisions of this Court and the Federal Court are in some way unjust to him. However, the analysis by Smith FM on the reinstatement application appears to me to have been extremely thorough. Obviously, I cannot review the decision of the Federal Court on the leave application. In my view, nothing of substance has changed since the decision of the Federal Court. The applicant is simply seeking another opportunity in this Court to agitate arguments that have already been dealt with or that could have been dealt with if the applicant had raised them.
The present application is, in my view, an abuse of this Court's process. Accordingly, I will dismiss it pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.
The Minister should not be further vexed by applications of this nature without a very good reason. I will, therefore, also order that no further application by these applicants to review any migration decision relating to their protection visa application made on 23 December 2005, including the decision of the delegate made on 2 March 2006 and the decision of the Tribunal handed down on 20 June 2006 or any notification of those decisions, be accepted for filing in this Court except by leave of the Federal Magistrate.
The application having been dismissed and an abuse of process having been found, the Minister seeks costs on an indemnity basis fixed in the sum of $1,300. I accept that estimate. The applicant was concerned about his rights of appeal, but did not make submissions on costs. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,300.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 July 2008
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