SZJOT v Minister for Immigration
[2008] FMCA 1122
•31 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1122 |
| MIGRATION – Review of decision of RRT – where proceedings already brought up to the High Court. |
| Migration Act 1958, ss.48B, 424A |
| Port of Melbourne Authority v Anshun Pty Ltd (1981) 36 ALR 3 SZJOT v Ministerfor Immigration [2007] FMCA 1705 SZJOT v Ministerfor Immigration [2008] FCA 258 SZJOT v Minister for Immigration [2008] HCASL 344 |
| First Applicant: | SZJOT |
| Second Applicant: | SZMLE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1620 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 31 July 2008 |
| Date of Last Submission: | 31 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| For the Applicants: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicants to pay the First Respondent's costs assessed in the sum of $1,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1620 of 2008
| SZJOT |
First Applicant
| SZMLE |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There comes before me today an application by the respondent Minister for summary dismissal of an application filed in this court on 24 June 2008. The grounds upon which the Minister seeks this order are that the application is itself an abuse of process of the court or has no reasonable prospects of success based upon the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 36 ALR 3 or, alternatively, it has no reasonable prospects of success based upon the grounds which have been articulated in the Amended Application filed on 10 July 2008.
Ms Buchanan, who appears on behalf of the Minister, filed an affidavit with the court on 9 July 2008 exhibiting a number of documents that establish that the decision of the Refugee Review Tribunal referred to in the application was the subject of review by this court SZJOT v Ministerfor Immigration [2007] FMCA 1705 by the Federal Court; SZJOT v Ministerfor Immigration [2008] FCA 258 and on application for special leave by the High Court on 12 June 2008 SZJOT v Minister for Immigration [2008] HCASL 344. It has frequently been said that an attempt to bring a further application in this court to review a decision of the Refugee Review Tribunal that has gone through all the available review stages constitutes an abuse of the process of this court. I would respectfully agree with those views.
To the extent that the first named applicant in the principal case has nominated different grounds for seeking review than those originally nominated, there may not be a case of res judicata or issue estoppel. However, this is most certainly a case to which the principles enunciated by the High Court in Anshun would come into play. Even if the first named applicant mistakenly did not include these two grounds in her original application to this court she had an opportunity of doing so when she approached the Federal Court for appeal and even an opportunity to raise the matter before the High Court. This was not done.
The two grounds raised by the first named principal applicant are, firstly, that the Tribunal failed to consider whether she would be at risk of persecution due to her religion. This is not a claim that was made by the first named applicant to the Tribunal. The only reference to religion is found in her response to the question put in her application for a protection visa found at page 4 in exhibit 1 of Ms Buchanan's affidavit. The question says:
“Your religion (if any)”
The answer:
“Christian Latin Catholic”
The naming of a religion does not constitute a claim of persecution for religious reasons.
The second matter raised by the first named principal applicant is that the Tribunal breached s.424A(1)(a) of the Migration Act1958 (the “Act”) by failing to provide her with particulars of country information utilised by the Tribunal to reject her case. There are no particulars of what country information is referred to. It would seem to me from my reading of the Tribunal's decision that any country information used was country information that would have fallen squarely within the exemption provided by s.424A(3)(a) of the Act.
Before me today the applicants said that they did not have an opportunity to fully explain their case to the Tribunal because they could not get information from India. Once again, I would note that the applicants have had over two years since the decision of the Tribunal until the final decision of the High Court. So far as I am aware no additional evidence has ever been provided or attempted to be produced. In any event it would seem to me that the production of additional evidence would do no more than possibly persuade a Minister to exercise his power under s.48B of the Act. The applicants also told me that in January 2008 their children had suffered serious road accidents in India. The court sympathises with the applicants in relation to this and with their difficulties but it is not a ground for allowing further review.
The application is clearly one which should not be permitted to proceed upon the grounds put forward by the Minister. The application is dismissed. The applicants to pay the First Respondent’s costs which I assess in the sum of $1,800.00.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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