SZJYL v Minister for Immigration & Anor
[2008] FMCA 892
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJYL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 892 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – repeat application – where Tribunal decision previously the subject of judicial review by Federal Magistrates Court. PRACTICE & PROCEDURE – Summary dismissal – no arguable case for the relief claimed – abuse of process – where applicant did not attend court. |
| Migration Act 1958 (Cth) ss.426A, 477 Federal Magistrates Court Rules 2001 rr.13.03A(c) and (e); 44.06(2)(c); 44.12(1)(a) |
| SZJYL v Minister for Immigration [2007] FMCA 1535 SZJYL v Minister for Immigration and Citizenship [2007] FCA 1789 |
| Applicant: | SZJYL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1476 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 June 2008 |
| Date of Last Submission: | 30 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Ms Anniwell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed as an abuse of process.
The applicant is to pay the first respondent’s costs fixed in the sum of $800.00.
No further application for review of the decision of the Refugee Review Tribunal signed on 24 November 2006 and handed down on
14 December 2006is to be accepted for filing without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1476 of 2008
| SZJYL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of Pakistan, asks the Court to set aside a decision of the Refugee Review Tribunal made on 14 December 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
He also applies for an extension of time to make the application under the provisions of s.477 of the Migration Act.
The applicant has not, however, attended Court today. The application was listed for 10:15 am. The applicant was called three times outside the Court at 10:21 and again at 10:35. He did not attend, nor has anyone attended Court on his behalf. No message has been received from the applicant or anyone else advising that he has been somehow hindered, delayed or prevented from attending Court for any reason.
The solicitors for the Minister wrote to the applicant on 23rd June 2008, advising him of the date that the matter would be before the Court and informing that they would seek orders in his absence if he did not attend.
I have acceded to the application of the solicitor appearing for the Minister, Ms Anniwell, to deal with this matter under the provisions of Rule 13.03A(e).
The first respondent, the Minister for Immigration and Citizenship, has filed a response opposing the application for review of the Tribunal’s decision for these reasons:
(1)The application has not raised an arguable case for the relief claimed [Rule 44.12.(1)(a)];
(2)There have been other judicial review proceedings in relation to the decision under review [Rule 44.06(2)(c)]; and
(3)The application is an abuse of the process of the Court.
Background
The background to this matter and the facts upon which the Minister relies to seek summary dismissal of the substantive application are succinctly set out in the response filed on behalf of the first respondent on 20th June 2008. They are also set out in greater detail in the affidavit of Brin Ellen May Anniwell, solicitor, filed that same day.
The applicant arrived in Australia on 28th December 2005 and applied for a Protection (Class XA) visa on 10th February 2006. A delegate of the Minister refused the application for a visa on 11th May 2006.
The applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 6th June 2006. The Tribunal decided the application by means of a decision signed on 24th November 2006 and handed down on 14th December 2006. From reading the text of the Tribunal decision, it appears that the Tribunal proceeded to a decision in the absence of the applicant, using its powers under s.426A of the Migration Act 1958.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The applicant then commenced proceedings in this Court for judicial review of the Tribunal decision. On 30th April 2007 Turner FM dismissed the application under the provisions of Rule 13.03A(c) and ordered the applicant to pay the first respondent’s costs. Rule 13.03A permits the court to dismiss an application in circumstances where the applicant is absent from the hearing.
The applicant applied to the Court on 25th May 2007 for reinstatement of his application.
On 21st June 2007 Turner FM dismissed the application with costs (see SZJYL v Minister for Immigration[1]).
[1] [2007] FMCA 1535
The applicant then sought leave to appeal. On 15th November 2007 Emmett J dismissed the application for leave with costs (see SZJYL v Minister for Immigration and Citizenship[2]).
[2] [2007] FCA 1789
The applicant has now filed a further application to this Court seeking judicial review of the decision of the Refugee Review Tribunal.
He seeks an extension of time to make the application under s.477 of the Migration Act.
Application to the Federal Magistrates Court
In his application, filed on 10th June 2008, the applicant seeks a writ of certiorari and an order that no action be taken to remove him from Australia while the decision is pending. He also seeks interlocutory orders, for some reason, as follows:
(1)The application may be heard and an order to redirect the applicant’s claim to the RRT for further consideration and to advice (sic) the Tribunal to make favourable decision.
(2)An order for costs and any further orders that this Honourable Court may deem appropriate.
I might comment that it would not be appropriate for the Court, if it were to remit the matter to the Refugee Review Tribunal, to advise the Tribunal to make a “favourable decision”. The Tribunal is an independent body and its duty is to make decisions according to law.
The applicant relies on the following grounds in his application:
(1) The Tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution of a convention reason for being a minority Wahabi and that I have no well founded fear of persecution within the meaning of the Convention. I do not meet the criteria set out in s.36(2) of the protection visa.
(2) The Tribunal exceeded its jurisdiction in making its decision to affirm the first Respondent’s decision.
The grounds do not show any jurisdictional error and appear to be no more than a re-agitation of the applicant’s claim for a protection visa.
The applicant’s affidavit contains what may be construed as grounds of review:
1. The Tribunal constructively failed to exercise its jurisdiction in arriving its decision.
2. I would like to seek leave from the court to make new line of argument. My application be allowed for filing with extension of time.
No particulars are provided in support of these apparent grounds.
Conclusions
Whilst the applicant’s grounds for review appear not to show any arguable case for relief, the immediate issue is that this court has already dealt with an application for judicial review of the Tribunal decision the subject of this application.
The original application was listed for final hearing and dismissed under the provisions of Rule 13.03A. When the applicant applied to the Court to reinstate his application, it is readily apparent from the decision of Turner FM that he considered whether the applicant’s application had raised an arguable case for the relief claimed.
His Honour, with respect, considered in some detail the original case and the Tribunal’s reasons for affirming the decision, at [13] to [23].
His Honour then went on to find:
[24] Ground one of the application alleges that the applicant’s case was not considered. Clearly that is not correct. That claim is not arguable.
[25] Ground two alleges that “the amount of persecution” and “the fear of life of the applicant” was not given any importance. The Tribunal considered that claim but rejected the claim that he faced serious harm because the information provided by the applicant was not sufficiently detailed to establish that he faced serious harm or a well founded fear of persecution. That claim is not arguable.
[26] The application for reinstatement is dismissed as the hearing of that application would be futile.
In his consideration of the applicant’s application for leave to appeal, Emmett J found:
The application for leave to appeal is completely without substance and should be dismissed with costs[3].
[3] SZJYL v Minister for Immigration and Citizenship [2007] FCA 1789 at [14]
It is quite clear that the application presently before the Court is merely an application to rehear a matter that has already been decided. There is no basis for this Court to conduct a further judicial review of the decision of the Refugee Review Tribunal.
The application is clearly without merit and is quite obviously an abuse of the process of the Court. I propose to dismiss the application with costs.
The Court should act to prevent applicants from bringing applications which constitute of its process. I propose to order that no further application for review of this particular decision of the Refugee Review Tribunal should be accepted for filing without leave of the Court.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.L. Coutman
Date: 30 June 2008
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