SZJPS v Minister for Immigration
[2008] FMCA 453
•7 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJPS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 453 |
| MIGRATION – Visa – Protection visa – RRT – application for review of decision of the Refugee Review Tribunal – abuse of process. |
| Migration Act 1958 (Cth) s.476 Federal Magistrates Court Rules2001, r.13.10 |
| SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24 SZJPS & Ors v Minister for Immigration & Anor [2007] FMCA 395 SZJPS v Minister for Immigration and Citizenship [2007] FCA 818 |
| Applicant: | SZJPS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG505 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 April 2008 |
| Date of Last Submission: | 7 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application for adjournment is refused.
The Application is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $900.00.
No further application for review of decision of the Refugee Review Tribunal number 060339432 signed on 20 September 2006 and handed down on 12 October 2006 is to be accepted from filing without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG505 of 2008
| SZJPS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant asks the Court for judicial review of a decision of the Refugee Review Tribunal that was signed on 20 September 2006. The applicant filed this application on 3 March 2008. There are in fact three applicants. Only the first applicant has attended court today.
The Minister opposes the application and indeed asks that the application be dismissed under the provisions of r.13.10(a) of the Federal Magistrates Court Rules on the ground that the applicants have no reasonable prospect of successfully prosecuting the proceeding or the claim. They also ask that the application be dismissed under r.13.10(c) of the Rules on the ground that the claim for relief is an abuse of the process of the Court. The Minister relies on the affidavit of Elisa Marie Crittenden sworn on 2 April 2008. That affidavit sets out the applicants' litigation history.
Briefly, the applicants applied for a protection class XA visa on
16 February 2006. A delegate of the Minister refused the application for a protection visa on 23 March 2006. On 13 April in that year the applicants applied to the Refugee Review Tribunal for a review of the delegate's decision. The Tribunal signed its decision affirming the decision of the delegate not to grant the applicants a protection visa on 20 September 2006. The decision was handed down on 12 October 2006. The applicants then commenced proceedings in the Federal Magistrates Court seeking judicial review of the Tribunal's decision.
On 6 March 2007 Turner FM dismissed the application with costs[1] The applicants then appealed. On 14 May 2007 in the Federal Court of Australia Tamberlin J hearing the appeal by delegation from the Full Court of the Federal Court dismissed the appeal with costs[2] The applicants then applied for special leave to appeal to the High Court of Australia on 5 June 2007. On 7 February 2008 Kirby and Heydon JJ dismissed the application for special leave to appeal.
[1] See SZJPS & Ors v Minister for Immigration & Anor [2007] FMCA 395
[2] See SZJPS v Minister for Immigration and Citizenship [2007] FCA818
What then happened is that the applicants filed an application on 3 March 2008 seeking to have the same decision of the Refugee Review Tribunal reviewed again. There were five grounds set out, the first two of which are not grounds at all. The third ground claims that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied the applicants procedural fairness in that the Tribunal failed to investigate the applicants' genuine claim with the requirements of the Migration Act. The applicants' case was in fact dealt with, if I may say so, very thoroughly by Turner FM on 6 March 2007 and the appeal from that decision was heard, also in my view, very thoroughly by Tamberlin J on 14 May 2007. There is no substance to that ground.
The fourth and fifth ground relies on the decision of the High Court of Australia in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24. Ground 4 said:
The decision made by the Tribunal falls within the application of High Court decision in the matter of SAAP where the Court made new ruling about the definition of section 424A of the Migration Act.
Ground 5 says:
I would like to seek leave from the Court to make this new line of argument on the basis that at the time of my matter before the Court the decision of SAAP was not in force and therefore there was a miscarriage of justice. I believe that it is important for the sake of natural justice that my application be allowed for filing with extension of time - RRT decision attached.
Those grounds are just wrong. The High Court of Australia handed down its decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs on 18 May 2005. The decision was in force not only before the matter was previously before the Court, but before the matter was decided by the Refugee Review Tribunal. It is not a new line of argument. It is no more than a spurious attempt to disguise a further application for review of a decision that has already been reviewed by the Court. The application has no merit whatsoever. It is quite clearly an abuse of process.
The lawyers for the Minister ask the Court to dismiss the application under r.13.10(a) on the ground that the applicants have no reasonable prospect of successfully prosecuting the proceeding or claim. The applicants have no prospect whatsoever in prosecuting a claim because it is entirely devoid of merit. The application will be dismissed under the provisions of r.13.10 on the basis that it is an abuse of process and it has no prospects of success. There will be an order that the applicants are to pay the first respondent's costs.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 9 April 2008
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