SZJTD v Minister for Immigration & Anor

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJTD v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 687

MIGRATION – Visa – Protection (class XA) visa – application for review of decision of the Refugee Review Tribunal – repeat application.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process.

Migration Act 1958 (Cth), s.476

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 followed
SZCTH v Minister for Immigration (No.1) [2004] FMCA 211 referred to.
SZJTD v Minister for Immigration and Citizenship [2007] FCA 1314 referred to.

Applicant:

SZJTD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 933 of 2008

Judgment of:

Scarlett FM

Hearing date:

12 May 2008

Date of Last Submission:

12 May 2008

Delivered at:

Sydney

Delivered on:

12 May 2008

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application is summarily dismissed under Rule 13.10(a) of the Federal Magistrates Court Rules 2001 as the applicants have no reasonable prospect of successfully prosecuting a claim.
In the alternative, the Application is summarily dismissed under Rule 2001 13.10(c) of the Federal Magistrates Court Rules 2001 on the ground that the application is an abuse of the Court process.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $1000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 933 of 2008

SZJTD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

There is an application for summary dismissal of the application by the applicant to review a decision of the Refugee Review Tribunal.
The Minister asks the court to dismiss the applicant’s application because:
(a)the application has no prospect of success;
(b)it is an abuse of process.
The applicant filed an application and an affidavit in support on 16 April 2008 seeking review of a decision of the Refugee Review Tribunal that was signed on 17 October 2006. In his application he claims that the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims. He claims the application is not vexatious and not an abuse of process.
He also claims that a Tribunal decision can be reviewed by the court a second time under certain circumstances[1].
[1] SZCTH v Minister for Immigration(No 1) (2004) FMCA 211
The applicant has told the court that he wants some more time to stay here in Australia. That may be the case, and the applicant has also said that he can provide further documentary evidence. As I have explained to other applicants this morning, the court is not in a position to take further documentary evidence or further evidence about an applicant’s original claim.
The applicant’s affidavit in support also sets out a ground claiming:
The decision made by the tribunal falls within the application of High Court decision in the matter of SAAP where the court made a new ruling about the definition of section 424A of the Migration Act. 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.
That ground contains a major factual error. The decision of the High Court of Australia in SAAP v The Minister for Immigration, Multicultural and Indigenous Affairs (2005) HCA 24 was handed down on 18 May 2005. That decision was well and truly in force at the time of the applicant’s hearing before the Refugee Review Tribunal and it was certainly in force when the application was under judicial review.
The history of the applicant’s litigation in respect of this matter is set out in a detailed affidavit of Alissa Maree Crittenden, sworn on 28 April 2008.
On 30 May 2006 the applicant filed an application for a protection (Class XA) visa with the then Department of Immigration and Multicultural and Indigenous Affairs.
On 20 June 2006 a delegate of the first respondent minister refused to grant the applicant a protection visa.
On 18 July 2006 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.
On 17 October 2006 the Tribunal signed its decision affirming the delegate’s decision to refuse the applicant a protection visa. That decision appears to have been handed down on 6 November 2006.
On 24 November 2006 the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. The application came before Turner FM on 9 May 2007. On that day his Honour dismissed the application with costs[2].
[2] SZJTD v Minister for Immigration & Anor (2007) FMCA 810
On 28 May 2007 the applicant filed a notice of appeal from the decision of Turner FM. That appeal was heard before Mansfield J who, on 8 August 2007, dismissed the appeal with costs[3].
[3] SZJTD v Minister for Immigration and Citizenship (2007) FCA 1314
The applicant then on 3 September 2007 applied to the High Court of Australia for special leave to appeal from the decision of Mansfield J.
On 27 March 2008 in the High Court of Australia Hayne and Crennan J dismissed the application for special leave.
The applicant then on 16 April this year filed a second application for review of the Tribunal’s decision.
The fact is that the Tribunal’s decision has already been reviewed and the matters that the applicant seeks to raise in his repeat application have to my mind been well and truly covered in the decisions of Turner FM and Mansfield J. The point about seeking to rely on the decision SAAP v Minister for Immigration and Multicultural and Indigenous Affairs is just plain wrong. That decision, as I said, was handed down well before the original proceedings started.
The reliance on the decision of Driver FM SZCTH v Minister for Immigration (No.1) is misconceived and in my view it can be distinguished.
The application will be summarily dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 2 June 2008

The matter before the court involved an applicant, SZJTD, who was challenging the decision of the Refugee Review Tribunal to refuse their application for a Protection (class XA) visa. The applicant sought a review of the tribunal's decision on the grounds that the tribunal had failed to consider material facts and had erred in law. The Minister for Immigration and another party were the respondents in the proceedings.

The court was required to determine whether the application for judicial review should be summarily dismissed on the basis that it was an abuse of process. The central issue was whether the applicant's repeat application was an abuse of process, given that the same matter had already been considered by the tribunal and the Federal Court. The court had to assess whether the applicant had a genuine prospect of success in the review and whether there were any other compelling reasons why the application should proceed.

The court found that the application was an abuse of process, as the applicant had already had the opportunity to challenge the tribunal's decision through previous judicial review proceedings. The court held that there were no new facts or evidence presented by the applicant that would warrant a further review. The court also noted that the applicant had not provided a satisfactory explanation for the delay in making the current application. The court concluded that the application should be summarily dismissed under Rule 13.10(a) of the Federal Court Rules.

The court ordered that the application be summarily dismissed and that the applicant pay the respondents' costs of the proceeding. The court further ordered that the applicant's costs be to be paid by the applicant, unless the court otherwise directed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established