SZJSV v Minister for Immigration and Citizenship

[2008] FCA 1048

FEDERAL COURT OF AUSTRALIA

SZJSV v Minister for Immigration and Citizenship
[2008] FCA 1048

SZJSV and SZJSW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 733 OF 2008

RARES J
10 JULY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 733 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSV
First Applicant

SZJSW
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	10 JULY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicants pay the costs of the first respondent, fixed in the sum of $1,100.

3.The applicants file no further proceedings in this Court without the leave of a judge of the Court, or in the Federal Magistrates Court without the leave of a federal magistrate, seeking to challenge the decision of the delegate of the first respondent made on 21 July 2006 to refuse to grant them protection visas, the decision of the second respondent signed on 16 October 2006, affirming the decision not to grant the applicants protection visas, and the decision of the second respondent signed on 27 February 2008 holding that it did not have jurisdiction.

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	NSD 733 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSV
First Applicant

SZJSW
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	10 JULY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. When this matter was called on for hearing this morning, the applicants did not appear.  However, the first applicant, who is the husband of the second applicant, responded when the mobile telephone number appearing on the application papers was contacted with the assistance of the court appointed interpreter.  He said he was not well and thus was not here and that his wife was at home.  He then participated in the hearing.

2. The applicants filed an application seeking leave to appeal from the decision of Emmett FM dismissing proceedings before the Federal Magistrates Court on the basis that they had no arguable prospect of success and were an abuse of the process of that court:  SZJSV v Minister for Immigration [2008] FMCA 561.

3. The grounds raised in the affidavit of the husband in this Court were that her Honour had failed to find that the decision of the Refugee Review Tribunal was in breach of s 424A of the Migration Act 1958 (Cth) in that the tribunal used adverse information to affirm the decision under review which it did not disclose to him. He asserted he did not get a proper opportunity to argue his case and believed that he had a strong and arguable case. The draft notice of appeal is in a template form used in similar applications and discloses nothing of substance.

4. The proceedings before her Honour sought to challenge the decision of the tribunal signed on 27 February 2008 in which it held that it had no jurisdiction.  It was undoubtedly correct in making that finding since¸ by its decision made on 16 October 2006, the tribunal had affirmed already the refusal of the delegate of the Minister to grant protection visas to the applicants:  Minister for Immigration and Multicultural Affairs v Thiyajarajah (2000) 199 CLR 343 at 355-356 [30] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

5. In addition, the applicants had sought judicial review of that earlier decision of the tribunal.  Scarlett FM dismissed that application on the ground that there was no jurisdictional error in circumstances where neither applicant had attended the hearing to which they had been invited under s 425A of the Act:  SZJSV v Minister for Immigration [2007] FMCA 355. North J dismissed an appeal from that decision, holding that there was no error made by the federal magistrate. In addition, his Honour separately considered again whether s 424A of the Act had been breached and concluded that there was no substance to that ground: SZJSV v Minister for Immigration and Citizenship [2007] FCA 913 at [6], [10] and [11].

6. On 6 February 2008 Gummow and Kiefel JJ dismissed an application by the applicants for special leave to appeal to the High Court of Australia:  SZJSV v Minister for Immigration and Citizenship [2008] HCA Trans 029. They said that the application for special leave to appeal did not advance any question of law which would justify the intervention of the court and that there were no prospects of success on any appeal.

7. In my opinion, Emmett FM’s decision characterising the proceedings before her as having no arguable prospect of success and as an abuse of the process of the Federal Magistrates Court was undoubtedly correct.  These proceedings are a plain abuse of the process of this court.  In my opinion they should be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        18 July 2008

The First Applicant:	Appeared via telephone link
Solicitor for the First Respondent:	N Johnson, Sparke Helmore

Date of Hearing:	10 July 2008
Date of Judgment:	10 July 2008