SZJWF & Anor v Minister for Immigration & Anor

[2008] FMCA 672

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJWF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 672

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant protection visas – where application already heard and decided.

PRACTICE & PROCEDURE – Abuse of process – where application for review previously heard and decided – applicants did not attend Court.

Federal Magistrates Court Rules 2001, r.13.10

SZJWF & Anor v Minister for Immigration & Anor [2007] FMCA 854
SZJWF v Minister for Immigration & Citizenship [2007] FCA 1325
SZJWF & Anor v Minister for Immigration and Citizenship & Anor [2008] HCASL 44

First Applicant: SZJWF

Second Applicant: SZJWG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 862 of 2008

Judgment of: Scarlett FM

Hearing date: 16 May 2008

Date of Last Submission: 16 May 2008

Delivered at: Sydney

Delivered on: 16 May 2008

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Ms Baggett

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The Application is summarily dismissed under the provisions of Rule 13.10 of the Federal Magistrates Court Rules 2001.

2. The Applicants are to pay the First Respondent’s costs in the sum of $1,500.00.

3. No further application for review of the decision of the Refugee Review Tribunal signed on 1 November 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 862 of 2008

SZJWF

First Applicant

SZJWG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal that was handed down on 21^st November 2006.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicants Protection (Class XA) visas.

2. The First Respondent, the Minister for Immigration and Citizenship, has filed an application in the case moving the Court for orders:

   a)That the substantive application be summarily dismissed under the provisions of rule 13.10 because:

   i)No reasonable cause of action is disclosed;

   ii)The claim for relief is frivolous or vexatious;

   iii)The claim for relief is an abuse of the process of the court; and

   b)That the Registry of the court be directed that no further application for review of the Refugee Review Tribunal decision or the delegate’s decision, dated 1 July 2006, or any other administrative decision in relation to the application for protection visas lodged on 2 June 2006 should be accepted for filing without leave of the court.

3. The Minister relies on the affidavit in support affirmed by Greg Johnson, solicitor, on 8^th May 2008.  The substantive application came before the Court for the first time on 5^th May 2008.  The First Applicant appeared in person with the assistance of an interpreter in the Gujarati language.

4. I adjourned matter until 10:00am today having been made aware that the Minister for Immigration and Citizenship sought orders for summary dismissal. The application seeking that order and the affidavit in support were, in fact, filed on 8^th May 2008.

Notice of Motion

1. The application came on for hearing today at 10:00am. There was no appearance by or on behalf of the Applicants. The matter was called ten minutes past 10 and there was no response to the call by the Applicants.  I stood the matter down in the list and at 10:31am the matter was called three times outside the Courtroom.  Again, no person appeared for the Applicants and neither applicant appeared.

2. The Court has received no notification, of which I am aware, that the Applicants have been delayed, hindered or prevented from attending Court today due to illness, injury or any other transport emergency.  The Applicants have just not appeared.

3. Accordingly I have excused the Gujarati interpreter from further attendance in this matter.

4. Ms Baggett, solicitor, who appears for the Minister has submitted that the Court can properly proceed under the provisions of Rule 13.03A(e) of the Federal Magistrates Court Rules. Rule 13.03A(3) provides that if a party to a proceeding is absent from a hear, including a First Court Date, the Court may do one or more of the following:

   (e)Proceed with the hearing generally or in relation to any claim for relief in the proceeding.

5. In my view due to the unexplained absence of the Applicants in the substantive application, it is appropriate for the Court to proceed to deal with the interlocutory application brought in the application in the case by the First Respondent Minister.

The Applicants’ Litigation History

1. As I indicated previously, the Minister relies on the affidavit of Greg Johnson. That affidavit sets out comprehensively the Applicants’ litigation history.  The Applicants have previously sought review of the delegate’s decision refusing to grant protection visas. The Refugee Review Tribunal handed down its decision on 21^st November 2006 affirming the decisions of the delegate not to grant the Applicants’ Protection (Class XA) visas.

2. The Applicants then sought judicial review of that decision from the Federal Magistrates Court. On 24^th May 2007 Smith FM heard the Applicants’ application for review and on that same day dismissed the application with costs.

3. The Applicants then sought to appeal against his Honour’s decision. On 13^th August 2007 Gyles J in the Federal Court dismissed the appeal with costs. (See SZJWF & Anor v Minister for Immigration & Anor[1]; SZJWF v Minister for Immigration & Citizenship[2]).

   [1] [2007] FMCA 854

   [2] [2007] FCA 1325

4. The Applicants then sought special leave to appeal to the High Court of Australia. On 27^th March 2008 in the High Court of Australia, Kirby and Hayden JJ dismissed the application (See SZJWF & Anor v Minister for Immigration and Citizenship & Anor[3]).

   [3] [2008] HCASL 44

5. The Applicant then commenced these proceedings by means of filing an application and an affidavit in support on 10^th April 2008. That application is an application to review the same decision of the Refugee Review Tribunal that was the subject of the proceedings for review in the Federal Magistrates Court, the Federal Court and the High Court of Australia to which I have just referred.

6. The application sets out three generic and unparticularised grounds:

   i)The RRT denied proper application of law to the applicant;

   ii)The RRT denied natural justice to the applicant;

   iii)The RRT did not follow due procedure.

7. The Applicants’ original application, filed on 14^th December 2006 in the Federal Magistrates Court, set out four grounds. A copy of that application forms annexure A of the affidavit of Mr Johnson. The grounds of the application there are:

   (a)The Tribunal relied on Independent Country Information and did not share this information with me;

   (b)The Tribunal discounted my specific claims on the grounds that it was copied from another application;

   (c)This denied me fairness and procedural correctness because the Tribunal was infected with bias;

   (d)The Tribunal was in jurisdictional error in reaching its decision because it did not take relocation and State protection effectiveness into consideration.  The Tribunal was clouded in its vision.

8. I have read the decision of Smith FM in these proceedings. With respect his Honour has dealt comprehensively with the grounds in the original application and with two other grounds which were included in an amended application.

9. His Honour’s decision was upheld on appeal and as has been made clear, the High Court of Australia dismissed an application for special leave to appeal.

10. There is no basis upon which a further application for review of the decision of the Refugee Review Tribunal, handed down on 21^st November 2006 can again be reviewed in this Court.

Conclusion

1. I am satisfied that the application is an abuse of process.  Quite clearly it has been commenced for an ulterior purpose and it is part of a pattern of litigation engaged in by the applicants in order to prolong their stay in Australia.

2. The Courts have dealt with the application for review.  The matter should proceed no further. I propose to make orders for summary dismissal with costs.  I am informed that the Minister is seeking the sum of $1,500.00 in costs in respect of this matter.  I consider that to be an appropriate figure. 

3. I am also of the view that the Court should take steps to prevent a further abuse of its process by directing the Registry that no further application for review of the Tribunal decision should be accepted for filing without leave of the Court.  I am not prepared to go so far as to make the direction in quite so comprehensive terms as the Minister submits, but I am prepared to make an order which I consider will meet the need of acting firmly to prevent repeat applications which are no more than an abuse of the process of this Court.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  28 May 2008