SZJDZ & Anor v Minister for Immigration & Anor

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDZ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 883

MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – where Tribunal decision has previously been the subject of judicial review.

PRACTICE & PROCEDURE – Show cause hearing – summary dismissal – abuse of process.

Migration Act 1958 (Cth) s.476

SZJDZ & Ors v Minister for Immigration & Anor [2006] FMCA 1564
SZJDZ v Minister for Immigration & Citizenship [2007] FCA 173
SZJDZ & Anor v Minister for Immigration & Citizenship & Anor [2007] HCA Trans 753

First Applicant:

SZJDZ

Second Applicant:

SZJEA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1421 of 2008

Judgment of:

Scarlett FM

Hearing date:

23 June 2008

Date of Last Submission:

23 June 2008

Delivered at:

Sydney

Delivered on:

23 June 2008

REPRESENTATION

The First Applicant:

Appeared in person

Solicitors for the Applicant:

Not legally represented

Appearance for the Respondent:

Ms Nandagopal

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application is dismissed as an abuse of process.
The applicants are to pay the 1st respondent’s costs fixed in the sum of $970.00.
No further application for review of the decision of the Refugee Review Tribunal signed on 21 June 2006 and handed down on 11 July 2006 is to be accepted for filing without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1421 of 2008

SZJDZ

First Applicant

SZJEA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicants in these proceedings have applied to the Court to review a decision of the Refugee Review Tribunal that was signed on 21^st June 2006 and handed down on 11^th July 2006. In their application they set out three grounds:
(1)The RRT denied proper application of law to the applicant.
(2)The RRT denied natural justice to the applicant.
(3)The RRT did not follow due procedure.
There are no particulars of these grounds set out in the application.
The first applicant has attended Court and told the Court that he cannot return to India because if he does he would be arrested. He has not provided any further information. The second applicant has not attended Court, but the first applicant informs me that he has authority to speak on her behalf.
The application this morning has been conducted as a show cause application. The Minister for Immigration and Citizenship asks the Court to dismiss the application because the applicants have already had their Refugee Review Tribunal decision reviewed by this Court.
The applicants’ litigation history is set out in an affidavit of Zoe McDonald, Solicitor, affirmed on 20^th June 2008. The history of the matter shows that the applicants commenced proceedings on

8^th August 2006
in this Court seeking judicial review of the decision of the Refugee Review Tribunal. The application came before me for final hearing on 12^th October 2006. I heard that application that day and dismissed the application, with costs, on that day (see SZJDZ & Ors v Minister for Immigration & Anor).[1]
[1] [2006] FMCA 1564
The applicants then filed a Notice of Appeal against that decision. That appeal was heard by Conti J and on 21^st February 2007 his Honour dismissed the appeal with costs (see SZJDZ v Minister for Immigration & Citizenship).[2]
[2] [2007] FCA 173
The applicants then applied to the High Court of Australia for special leave to appeal. That application was dismissed by Hayne and Crennan JJ on 11^th December 2007, (see SZJDZ & Anor v Minister for Immigration & Citizenship & Anor).[3]
[3] [2007] HCA Trans 753
What the applicants have now done is file a fresh application on 3^rd June 2008 seeking to start their proceedings again.
Quite clearly there is nothing for the Court to hear. The Court has already reviewed the decision of the Refugee Review Tribunal. That decision has been challenged on appeal unsuccessfully. There are no reasons given as to why the applicants could have any belief that the Court would have the power to rehear its own decisions, and quite clearly there are none other than for an ulterior motive. In my view this application is an abuse of process. It should be dismissed as an abuse of process. It should be dismissed with costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 26 June 2008

In the Federal Court of Australia, the applicants, SZJDZ and another, sought review of a decision made by the Refugee Review Tribunal (RRT) affirming the Minister for Immigration's refusal to grant them a protection visa. This matter is an application for review of the RRT's decision dated 21 June 2006 and delivered on 11 July 2006, which had previously been subject to judicial review. The applicants challenged the RRT's decision, arguing that it contained errors of law and that the RRT had failed to consider relevant evidence.

The court identified two main legal issues to address: the merits of the applicants' claims regarding the RRT's decision and the procedural issue of whether the application should be dismissed due to abuse of process. The court examined whether the RRT's decision contained errors of law and whether the applicants had presented any new evidence or arguments that warranted reconsideration. Additionally, the court considered whether the applicants' repeated attempts to seek judicial review constituted an abuse of process.

The court determined that the applicants' application was an abuse of process due to their persistent attempts to re-litigate the same issue despite previous judicial review. The applicants had already had the opportunity to present their case before the RRT and had failed to introduce any new evidence or arguments that would justify further review. The court found that the applicants' conduct demonstrated a disregard for the judicial process and a clear abuse of the Court's time and resources. Consequently, the application was dismissed, and the applicants were ordered to pay the costs of the Minister for Immigration. The court also issued a direction that no further applications for review of the RRT decision would be accepted without the leave of the Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established