SZJOH v Minister for Immigration

[2008] FMCA 1401

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOH v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1401

MIGRATION – Application for summary dismissal – where applicant previously exercised all legal powers of review – proceedings an abuse of process.

SZCTH v Minister for Immigration [2004] FMCA 211

Applicant: SZJOH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2203 of 2008

Judgment of: Raphael FM

Hearing date: 26 September 2008

Date of Last Submission: 26 September 2008

Delivered at: Sydney

Delivered on: 26 September 2008

REPRESENTATION

Applicant in person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2203 of 2008

SZJOH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me an application by the first respondent Minister for summary dismissal of proceedings commenced by way of application in this court on 25 August 2008, seeking review of a decision of the Migration Review Tribunal which had determined not to grant the applicant a bridging visa after the Refugee Review Tribunal had determined that it had no jurisdiction to hear his application for review of a decision of the delegate not to grant him a protection visa.  The difficulty which the applicant faces is that this is not the first time he has requested this court to review the MRT decision, as is carefully adumbrated in the affidavit of Zoe McDonald, affirmed on 8 September 2008 and filed herein. 

2. On 30 July 2007, the applicant filed an application in this court seeking judicial review of the MRT decision not to grant him the bridging visa.  That matter was determined by Scarlett FM on 12 November 2007. On 30 November 2007, the applicant filed a notice of appeal with the Federal Court.  The appeal was heard and dismissed by Flick J on 6 March 2008.  The applicant then sought special leave of the High Court and on 31 July 2008, their Honours Kiefel and Gummow JJ declined to grant special leave.

3. The application, which was filed with this court on 25 August 2008, seeks review of the same MRT decision that was the subject of all those previous decisions.  The application notes two grounds.  The first is that the Tribunal exceeded its jurisdiction or failed to exercise its jurisdiction, or denied him procedural fairness, by failing to consider his genuine claims.  This statement is one of extreme generality, and is of little assistance to a court endeavouring to understand what the applicant may be saying.  However, he has provided some written submissions, filed on 23 September 2008, in which he says that the Refugee Review Tribunal failed to note that he satisfied the definition of “refugee” and then failed to consider the concept of serious harm.  The problem with those statements is that they refer to the decision of the Refugee Review Tribunal, not to the decision of the Migration Review Tribunal, which is the one in respect of judicial review is being sought.

4. The second ground refers to a case decided by Driver FM in 2004 known as SZCTH v Minister for Immigration [2004] FMCA 211. It is correct to say the case held that there was scope to judicially review a decision of the delegate. But since that time, the Migration Act 1958 (Cth) has been amended so that this is no longer a possibility.

5. In the circumstances, there is nothing in the application which would indicate that it has any possibility of success, and I would be entitled to dismiss it for that reason under Part 13 r.13.10(a).  In addition, I am of the view that the application is itself an abuse of process because it seeks to reagitate a decision that has already been made and upheld on appeals.  For those reasons I dismiss the application.

6. Today the applicant told me that his case has not been heard and he wanted it to be heard in the court system.  It is true that he has not had an opportunity to appear before a Tribunal and present his case orally, but that is due to his own failure to comply with the time limits.  He should understand that there are no circumstances in which the merits of his claim to be a person to whom Australia owes protection obligations can be considered by a court.  The court’s powers in this regard are limited to those of judicial review.  The applicant should bear this in mind when considering any appeals from the decision I have just made. I order that the applicant pay the respondent's costs assessed in the sum of $1500.00.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  8 October 2008