SZJEZ v Minister for Immigration

[2009] FMCA 489

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJEZ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 489

MIGRATION – Application for review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – decision of the Tribunal previously upheld by the Federal Magistrates Court, the Federal Court and the High Court – interlocutory dismissal of application – no arguable case – abuse of the Court’s process.

Federal Magistrates Court Rules 2001 (Cth), rr.13.10, 44.11(a), 44.12

SZJEZ v Minister for Immigration & Anor [2008] FMCA 914
SZJEZ v Minister for Immigration & Citizenship [2008] FCA 1741
SZJEZ v Minister for Immigration and Citizenship & Anor [2009] HCASL 74

Applicant: SZJEZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 951 of 2009

Judgment of: Lloyd-Jones FM

Hearing date: 20 May 2009

Delivered at: Sydney

Delivered on: 20 May 2009

REPRESENTATION

Solicitors for the Applicant: The Applicant appeared in person assisted by a Malayalam interpreter

Counsel for the Respondents: Ms E. Baggett (solicitor)

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application filed on 23 April 2009 is dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (Cth).

2. No further application by the applicant to review the decision of the Refugee Review Tribunal (reference number 071456263) made on 30 August 2007 and handed down on 20 September 2007 is to be accepted for filing, except by leave of this Court.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 951 of 2009

SZJEZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application in the Federal Magistrates Court on 23 April 2009 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on

   
   

   30 August 2007 and handed down on 20 September 2007 (Tribunal reference number 071456263).  The Tribunal decision affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Protection (Class XA) visa.

2. On 5 May 2009, solicitors for the first respondent filed an Application in a Case and an affidavit in support, seeking that the matter be summarily dismissed under r.13.10 of the Federal Magistrates Court Rules 2001 (Cth) for having no reasonable prospect of success, being frivolous or vexatious, or an abuse of process of the Court. The first respondent also seeks that no further application for review of the Tribunal decision, or the decision of the delegate, or any other administrative decision or action relating to the applicant’s protection visa application is accepted for filing without leave of the Court.

Background

1. The affidavit of Greg Johnson, affirmed on 5 May 2009, sets out the litigation and procedural history in this matter:

   a)On 16 August 2004, the applicant applied to the Department of Immigration for a protection visa.

   b)On 16 September 2004, the delegate of the first respondent refused to grant the applicant the protection visa.

   c)In October 2004, the applicant applied to the Tribunal for review of the delegate’s decision.  The Tribunal dismissed the application.

   d)The applicant applied to the Federal Magistrates Court for review of the Tribunal decision and, on 18 April 2006, Scarlett FM set aside the Tribunal decision by consent and remitted the matter to the Tribunal to be reconsidered according to law.

   e)A reconstituted Tribunal affirmed the delegate’s decision which was also the subject of a judicial review application to the Federal Magistrates Court.  On 7 May 2007, Nicholls FM made orders by consent again remitting the matter to the Tribunal to be reconsidered according to law.

   f)On 20 September 2007, a third reconstituted Tribunal handed down its decision again affirming the delegate’s decision (Tribunal reference number 071456263). 

   g)On 8 October 2007, the applicant applied to the Federal Magistrates for judicial review of the third Tribunal’s decision.  On 27 June 2008, Barnes FM dismissed that application for review in SZJEZ v Minister for Immigration & Anor [2008] FMCA 914.

   h)On 11 July 2008, the applicant appealed to the Federal Court against the decision of Barnes FM.  On 20 November 2008, Greenwood J dismissed the appeal: SZJEZ v Minister for Immigration & Citizenship [2008] FCA 1741.

   i)On 10 December 2008, the applicant applied to the High Court for special leave to appeal against the decision of Greenwood J. On 1 April 2009, Heydon and Bell JJ dismissed that application: SZJEZ v Minister for Immigration and Citizenship & Anor [2009] HCASL 74.

   j)On 23 April 2009, the applicant again applied to the Federal Magistrates Court for judicial review of the third Tribunal decision (reference number 071456263).

2. Under the Federal Magistrates Court Rules, the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. Rule 44.11(a) permits the Court to dismiss an application at the First Court Date on an interlocutory basis with specific reference to r.44.12:

   (1)   At a hearing of an application for an order to show cause, the Court may:

   (a)    if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or

   (b)…               

   (c)…

   (2)   To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.

   I note that this power should be exercised cautiously and only in appropriate circumstances. 

3. In this case, the applicant’s circumstances have already been considered by the Tribunal on three separate occasions.  The third Tribunal decision which is the subject of the current application to the Court has already been reviewed by Barnes FM in SZJEZ v Minister for Immigration & Anor [2008] FMCA 914.

4. I believe that all the applicant has done in this case is file another application in an attempt to start the whole circular process again.  The applicant has not attempted to raise any new ground of review not put to the Courts previously.  This is nothing more than an attempt by the applicant to further delay finality by misusing the Court’s processes.  It is clearly an abuse of process.

5. I therefore dismiss the application under r.13.10 of the Federal Magistrates Court Rules.  I also order that the applicant pay the first respondent’s costs of and incidental to the application.  I further order that the applicant is prevented from filing any further applications for review of the third Tribunal decision.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  26 May 2009