SZJVD & Ors v Minister for Immigration & Anor
[2008] FMCA 670
•19 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 670 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicants protection visas – repeat application. PRACTICE & PROCEDURE – Abuse of process – summary dismissal – where the decision of the Refugee Review Tribunal has previously been the subject of judicial review – where application has no reasonable prospects of success – where one applicant is an infant – litigation guardian. |
| Migration Act 1958 (Cth) s.476 Federal Magistrates Court Rules 2001 rr.11.11, 13.10 |
| NAMW & Ors v Minister for Immigration [2004] FMCA 36 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 SZJVD & Ors v Minister for Immigration & Anor [2007] FMCA 817 SZJVD v Minister for Immigration and Citizenship [2007] FCA 1302 SZJVD & Ors v Minister for Immigration and Citizenship & Anor [2008] HCASL 62 R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 R v Murray; Ex parte Proctor (1949) 77 CLR 387 R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 WADJ v Minister for Immigration [2002] FMCA 118 |
| First Applicant: | SZJVD |
| Second Applicant: | SZJVE |
| Third Applicant: | SZJVF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 925 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 May 2008 |
| Date of Last Submission: | 19 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2008 |
REPRESENTATION
| Applicants: | First Applicant in person |
| Solicitor for the Respondent: | Ms Griffin |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The First Applicant is appointed the litigation guardian of the Third Applicant.
The Application is summarily dismissed under the provisions of Rule 13.10 of the Federal Magistrates Court Rules 2001.
The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $1,500.00.
No further application for review of the decision of the Refugee Review Tribunal signed on 23 October 2006 and handed down on 21 November 2006 is to be accepted for filing without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 925 of 2008
| SZJVD |
First Applicant
| SZJVE |
Second Applicant
| SZJVF |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was signed on 23rd October 2006 and handed down on 21st November 2006. The Minister for Immigration & Citizenship, the First Respondent, has filed a Response and seeks to have the application summarily dismissed.
The grounds, in short, are as follows:
a)The application is frivolous or vexatious and amounts to an abuse of the Court's process.
b)That the application has not raised an arguable case for the relief claimed under r. 44.12(1)(a).
The reason, or reasons, why the Minister raises the objection to the application proceeding to a final hearing is that the decision of the Refugee Review Tribunal has already been the subject of judicial review by the Federal Magistrates Court. Indeed, the Minister claims that the decision of this Court reviewing the Tribunal decision has been the subject of an unsuccessful appeal and has been the subject of an application to the High Court of Australia for special leave to appeal, which has also been refused.
The Minister relies on an affidavit of Denise Attard, solicitor, affirmed on the 6th and filed on 7th May 2008, setting out in some detail the litigation history of the Applicants.
Applicants’ Litigation History
On 27th September 1999 the First and Second Applicants - who are husband and wife - applied for Protection (Class AZ) visas. A delegate of the Minister refused their application on 26th October 1999. The two Applicants then, on 12th November 1999, applied to the Refugee Review Tribunal for a review of that decision.
The First and Second Applicants then had a child - a son - and on 28th April 2000 an application for a Protection (Class AZ) Visa was lodged on behalf of the son, relying on the First and Second Applicant's application. A delegate of the Minister refused that application on behalf of the son on 9th January 2001. On 6th February 2001 the Third Applicant sought a review of that delegate's decision, and on 30th November 2001 the Refugee Review Tribunal, in two separate decisions, affirmed both decisions not to grant the three Applicants Protection visas. Those decisions were handed down on 20th December 2001.
The three Applicants then sought a review of the Tribunal's decisions in this Court and were allocated the pseudonyms NAMW, NAMX and NAMY. On 5th March 2004 Driver FM made orders quashing the Tribunal decisions and remitting the application to the Refugee Review Tribunal. (See NAMW & Ors v Minister for Immigration[1]).
[1] [2004] FMCA 36
The First Respondent Minister appealed and on 23rd September 2004 the Full Court of the Federal Court of Australia, per Beaumont, Merkle and Healy JJ, dismissed the appeal. (See Minister for Immigration & Multicultural & Indigenous Affairs v NAMW[2]).
[2] [2004] FCAFC 264; (2004) 140 FCR 572
The Refugee Review Tribunal, differently constituted, affirmed the decisions of the two delegates in a decision signed on 9th March and handed down on 30th March 2005. The three Applicants then sought judicial review of that decision of the Refugee Review Tribunal in this Court and they were then allocated the pseudonyms which they have today - SZJVD, SZJVE & SZJVF. On 28th June 2006 Nicholls FM made orders by consent quashing the decisions and remitting the matter to the Tribunal for determination according to law.
The Tribunal again considered the matters in the decision that is the subject of these proceedings, and on 23rd October 2006 the Tribunal affirmed the decisions not to grant the Applicants protection visas, this time described as Protection (Class XA) visas. That decision was handed down on 21st November 2006. The Applicants then applied to this Court on 8th December 2006 seeking judicial review of the Tribunal decision. On 1st June 2007 Cameron FM dismissed that application. (See SZJVD & Ors v Minister for Immigration & Anor[3]).
[3] [2007] FMCA 817
The Applicants then appealed against his Honour's decision and on 9th August 2007 in the Federal Court Middleton J dismissed the appeal and made orders for costs against the first and second appellants. (See SZJVD v Minister for Immigration & Citizenship[4]).
[4] [2007] FCA 1302
The Applicants in these proceedings then applied to the High Court of Australia for special leave to appeal against the decision of Middleton J. On 27th March 2008 in the High Court Kirby and Hayden JJ dismissed the application for special leave. (See SZJVD & Ors v Minister for Immigration & Citizenship & Anor[5]).
[5] [2008] HCASL 62
The Applicants then, on 16th April this year, filed a fresh application seeking review of the Tribunal decision that had been the subject of the proceedings before Cameron FM, Middleton J, and Kirby and Hayden JJ. The Minister's argument is that the Applicants are estopped from re-litigating matters that have already been litigated and finalised.
Interlocutory Application
The Applicant filed today a document as a submission headed "Argument and Jurisdiction". He admitted, after some questioning from the Bench, that he had some assistance with it, not just in translation from Bengali into English. The document contains an exposition about the nature of a privative clause and whether or not s.474 of the Migration Act constitutes a privative clause.
In that submission the applicant refers to the decision of the High Court of Australia in R v Coldham; Ex parte Australian Workers' Union[6], where the Court looked at a situation where there was an inconsistency between a privative clause and other statutory provisions. The submission also refers to the decision of Dixon J in R v Murray; Ex parte Proctor[7], and indeed looked at the provisos in the Hickham decision, namely R v Hickman; Ex parte Fox & Clinton[8].
[6] (1983) 153 CLR 415
[7] (1949) 77 CLR 387
[8] (1945) 70 CLR 598
The Applicant was asked why he had not sought to make these submissions when the matter was before Cameron FM on 1st May 2007 and he replied that he was not aware of the decisions at that stage. Quite clearly, whilst the submission relates to privative clauses generally and those cases have been comprehensively reviewed by Barnes FM in this Court in WADJ v Minister for Immigration[9], with respect, the submissions do not answer the contention made by the Minister today that the Applicant is seeking to re-litigate matters that have already been decided. The Applicant has not made any submissions on that point and it seems to me that the Minister's submissions are in fact unanswerable.
[9] [2002] FMCA 118 at [14] – [17]
Conclusion
Only the First Applicant has appeared at Court today, although he indicated that he was speaking on behalf of his wife and son. The Third Applicant is the child of the First and Second Applicant and is an infant. No application had been made for the appointment of a litigation guardian for him, but I am of a view, for the purpose of these proceedings, that I should make such an order, even if only for completeness, and I propose to appoint the First Applicant as litigation guardian of the Third Applicant. I do not see that they have any conflicting interests.
The fact is, however, that the Applicants are seeking to re-litigate matters that have already been litigated. The application can truly be said to have no reasonable prospects of success, and in fact I am satisfied that the application has no prospect of success. I am also satisfied that the application is an abuse of the process of the Court and would appear to me to have been commenced purely for the purpose of prolonging the Applicants' stay in Australia.
Accordingly, I propose to make an order for summary dismissal under the provisions of r.13.10 of the Federal Magistrates Court Rules.
I propose to make orders for costs in favour of the First Respondent, but against the First and Second Applicants only, the Third Applicant being an infant.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 27 May 2008
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