SZJPG v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJPG v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 802

MIGRATION – Visa – protection visa – non – appearance at Court – abuse of process – repeat application for judicial review – where the court has previously dealt with the application for judicial review of the same RRT decision – application dismissed as an abuse process.

Federal Magistrates Court Rules2001, r.13.03A(e)

SZJPG & Anor v Minister for Immigration [2007] FMCA 953

SZJPG v The Minister for Immigration & Citizenship [2007] FCA 1811

Applicant:

SZJPG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1160 of 2008

Judgment of:

Scarlett FM

Hearing date:

16 June 2008

Date of Last Submission:

16 June 2008

Delivered at:

Sydney

Delivered on:

16 June 2008

REPRESENTATION

Solicitors for the Applicant:

In Person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application for review of the decision of the Refugee Review Tribunal filed on 8 May 2008 is dismissed as an abuse of the process of the Court.
In the alternative the application is dismissed on the basis that the applicants have no reasonable prospect of successfully prosecuting the proceeding or claim.
The applicants are to pay the 1st respondent's costs fixed in the sum of $1200.
That the Registry of the Court be directed that no further application for review of the decision of the RRT signed on 18 September 2006 and handed down on 5 October 2006 (RRT reference number 060544735) or for review of the decision of the delegate of the 1st respondent dated 10 June 2006 or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa lodged on 10 May 2006 should be accepted for filing without prior leave of the Federal Magistrate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1160 of 2008

SZJPG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The proceeding before the Court today is a show cause application. The first respondent, the Minister for Immigration & Citizenship, has asked the Court to deal with the matter today on the basis of grounds set out in the Minister's response filed on 22 May 2008. The orders sought by the applicant are opposed on these bases.
a)There have been other judicial review proceedings in relation to the decision, r.44.06(2)(c) and the applicants failed to disclose the existence of all of those proceedings, r.44.06(2)(d).
b)The applicants have no reasonable prospect of successfully prosecuting the proceeding or claim, and
c)The proceeding or claim for relief is frivolous or vexatious; and
d)The proceeding or claim for relief is an abuse of the process of the Court.
The Minister also seeks an order directing the Registry that no further applications for the review of the relevant decision of the Refugee Review Tribunal should be accepted without the prior leave of the Federal Magistrate.
The Minister relies on the affidavit of Zoe McDonald, solicitor, affirmed on 29 May 2008 and on the affidavit of Pua Soliola, administrative assistant affirmed on 13 June 2008, which is an affidavit of service by post of the affidavit of Ms McDonald. The affidavit of Ms McDonald sets out the litigation history of the two applicants.
They commenced proceedings on 30 October 2006 in this Court seeking judicial review of a decision of the Refugee Review Tribunal that was signed on 18 September 2006 and handed down on 5 October. That application for review was dismissed by Emmett FM on 22 June 2007, see SZJPG & Anor v Minister for Immigration [2007] FMCA 953.
The applicants then filed a notice of appeal at the Federal Court seeking an appeal from her Honour's decision. That appeal was dismissed by North J on 9 November 2007, see SZJPG v The Minister for Immigration & Citizenship [2007] FCA 1811.
On 5 December 2007 the applicants then filed an application for special leave to appeal from that decision to the High Court of Australia. That application was dismissed by Gummow and Keifel JJ on 24 April 2008. Annexed to Ms McDonald's affidavit is a copy of their Honours' orders. What now appears to have happened is that the applicants have commenced proceedings again in this Court by filing an application and an affidavit in support on 8 May 2008. The application discloses some other Court proceedings in the Federal Magistrates Court and the Federal Court, although not the High Court. The application not surprisingly seeks an extension of time because it is otherwise out of time or would be if there was evidence that showed personal service on the applicants.
The application sets out three grounds without particulars.
a)The RRT denied proper application of law to the applicant.
b)The RRT denied natural justice to the applicant.
c)The RRT did not follow due procedure.
No particulars of these grounds have been provided and it would seem that the matter has been well and truly litigated in the Federal Magistrates Court, the Federal Court and the High Court.
This is a repeat application. Unfortunately, such applications are prevalent in this jurisdiction. These applicants have not attended Court. Their application was listed for a show cause hearing at 10.30 am. When the matter was called at 11.15 am there was no appearance by either applicant. There has been no reason given by means of a telephone call or a fax or any appearance by anyone to explain their absence. They have just not turned up. It is appropriate, however, for me to proceed to deal with the matter unde r.13.03A(e) of the Federal Magistrates Court rules and I propose to dismiss the application. Certainly I have been given in the Minister's response some four different reasons for dismissal. In my view, I should make it quite clear that the substantive application is an abuse of the process of the Court because it is clearly an abuse of process and I should dismiss it for that reason.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 17 June 2008

In the matter of SZJPG v Minister for Immigration, the applicants sought judicial review of the Refugee Review Tribunal's (RRT) decision to reject their application for a protection visa. The RRT had determined that the applicants were not refugees as defined under the relevant legislation, and this decision was subsequently upheld. The applicants appealed to the Federal Circuit and Family Court of Australia, arguing that the RRT's decision was flawed. The Minister for Immigration defended the RRT's decision, asserting that the applicants' claims did not meet the statutory criteria for refugee status.

The primary legal issues the court had to resolve were whether the RRT's decision was legally sound and whether the applicants had a reasonable prospect of success if the case were to be re-heard. The court examined the evidence presented to the RRT, the applicable legal principles, and the RRT's application of those principles. The applicants argued that the RRT failed to properly consider their evidence and misapplied the law, leading to an unjust outcome.

The court found that the RRT's decision was based on a thorough and correct application of the law, and that the applicants' claims were insufficient to meet the statutory definition of a refugee. The applicants had not demonstrated any reasonable prospect of successfully challenging the RRT's findings. Consequently, the court dismissed the application for review, finding it to be an abuse of process, and ordered that no further applications for review would be accepted without prior leave of the Federal Magistrate. The applicants were also required to pay the Minister's costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established