SZJPS v Minister for Immigration and Citizenship

[2008] FCA 1014

FEDERAL COURT OF AUSTRALIA

SZJPS v Minister for Immigration and Citizenship [2008] FCA 1014

Federal Magistrates Court Rules 2001

Federal Court of Australia Act 1976 (Cth)

SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] HCA 24

SZJPS, SZJPT and SZJPU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD582 OF 2008

REEVES J

18 JUNE 2008

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD582 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJPS
First Applicant

SZJPT
Second Applicant

SZJPU
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	18 JUNE 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The adult applicants, SZJPS and SZJPT, pay the first respondent’s costs of this application fixed in the sum of $700.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD582 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJPS
First Applicant

SZJPT
Second Applicant

SZJPU
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	18 JUNE 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

1. This is an application for leave to appeal the decision of Federal Magistrate Scarlett delivered on 7 April 2008, dismissing the applicant’s application filed in the Federal Magistrates Court on 3 March 2008, seeking judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’), delivered on 12 October 2006.  There are, in fact, three applicants, all members of the same family.  In these reasons, I will only refer to the male applicant’s application, however, these reasons are intended to apply equally to all three applications. 

2. The order of Federal Magistrate Scarlett was made following a submission by the first respondent that the applicant’s application be dismissed under rule 13.10 (a) of the Federal Magistrates Court Rules 2001, on the ground that the applicant had no reasonable prospects of successfully prosecuting it. 

3. Since Federal Magistrate Scarlett’s order was an interlocutory order, leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

4. To succeed in an application of this kind, the applicant must show that the Federal Magistrate’s decision is attended by sufficient doubt to justify leave and that he or she would suffer substantial injustice if leave were not to be granted.

5. As Federal Magistrate Scarlett records at [3] to [5] of his reasons for decision, prior to the current application for judicial review filed in the Federal Magistrates Court, the applicant had unsuccessfully sought to review the Tribunal’s decision delivered on 12 October 2006, in the Federal Magistrates Court before Federal Magistrate Turner in 2007, in the Federal Court of Australia before Justice Tamberlin later in 2007 and in the High Court of Australia on a special leave application that was refused on 7 February 2008. 

6. The application before Federal Magistrate Scarlett contained five grounds.  His Honour held the first two grounds were not grounds at all.  His Honour considered the third ground, which alleged an excess of jurisdiction or a constructive failure to exercise jurisdiction, had already been thoroughly considered by Federal Magistrate Turner and by Justice Tamberlin and had been determined against the applicant.  His Honour, therefore, held there was no substance to that ground.

7. His Honour also rejected grounds 4 and 5 which, he noted, purported to rely upon the High Court’s decision in SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] HCA 24. His Honour held these grounds were “just wrong” and characterised them as a spurious attempt to disguise a further attempt at reviewing a decision that had already been reviewed a number of times. His Honour therefore held that they had no merit and amounted to an abuse of process.

8. In the end result, his Honour found that all of the grounds of review before him had no prospects of success whatsoever and were entirely devoid of merit.

9. The draft notice of appeal attached to the applicant’s application for leave to appeal to this Court raises three grounds, as follows:

   ‘(a)The Federal Magistrate failed to find an “error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903 (Cth).”

   (b)The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

   (c)The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

10. All of these grounds raise various forms of alleged jurisdictional error in the Tribunal’s decision that Federal Magistrate Scarlett allegedly failed to detect.

11. The question whether there is any jurisdictional error present in the Tribunal’s decision has already been thoroughly reviewed by the Federal Magistrates Court and by this Court in 2007 and rejected. 

12. If there were a need for any further confirmation of this fact, the applicant has recently failed to obtain special leave to appeal these decisions in the High Court of Australia. 

13. I therefore respectfully agree with Federal Magistrate Scarlett that this current attempt to review the Tribunal’s decision delivered on 12 October 2006, has no reasonable prospects of success.

14. I also respectfully agree with Federal Magistrate Scarlett that to raise essentially the same grounds of review in relation to the same decision of the Tribunal when that ground has already been thoroughly reviewed and rejected by the whole of the relevant Federal review and appellate structure, is an abuse of process. 

15. In my respectful opinion, there is no error apparent in Federal Magistrate Scarlett’s decision to justify the grant of leave to appeal that decision.  I therefore order that this application be dismissed.

1. I also order that the adult applicants, that is, SZJPS and SZJPT, pay the first respondent’s costs of this application fixed in the sum of $700.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        4 July 2008

Counsel for the Applicants:	In person
Counsel for the First Respondent:	Ms S Kantaria
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	18 June 2008
Date of Judgment:	18 June 2008