SZJZV v Minister for Immigration
[2008] FMCA 1321
•22 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1321 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Tribunal decision previously reviewed by the Courts – interlocutory dismissal of show cause application – abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| SZJZV v Minister for Immigration & Anor [2007] FMCA 2013 SZJZV v Minister for Immigration [2008] FCA 628 SZJZV v Minister for Immigration & Anor [2008] HCASL 458 |
| Applicant: | SZJZV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2271 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 22 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Whittemore Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,160.
No further application by this applicant to review the decision of the Refugee Review Tribunal handed down on 19 December 2006 or any other migration decision relating to his protection visa application lodged on 29 May 2006 be accepted for filing in this Court, except by leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2271 of 2008
| SZJZV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 2 September 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 19 December 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The show cause application asserts notification of the Tribunal decision on the day the decision was handed down. However, the applicant told me from the bar table that he did not attend that handing down and received a copy of the decision in the post about three days later. I proceeded on the basis that the application is not incompetent, pursuant to s.477 of the Migration Act 1958 (Cth). That is on the basis that the applicant has not been physically given a copy of the Tribunal decision by either of the respondents.
The application is supported by a short affidavit by the applicant, annexing the Tribunal decision. The affidavit itself I treated as a submission, as it makes legal assertions. The Minister filed a response to the application on 10 September 2008. That response identifies earlier judicial review proceedings in relation to the Tribunal decision. Those earlier proceedings had in fact been identified by the applicant himself in his show cause application. The Minister seeks orders that the show cause application be summarily dismissed.
The Minister's response is supported by the affidavit of Katherine Elizabeth Whittemore made on 10 September 2008. I received that affidavit with certain amendments. The affidavit sets out the relevant procedural background to this matter. I incorporate as background paragraphs 4 to 9 of the affidavit and the annexed chronology with any necessary amendments:
On 29 May 2006, the applicant lodged an application for a protection visa with DIMA. On 24 June 2006, a delegate of the first respondent made a decision refusing to grant the applicant a protection visa.
On 20 July 2006, the applicant lodged an application for review of the delegate’s decision with the Tribunal. On 30 November 2006, the Tribunal constituted by Catherine Carney made a decision to affirm the decision of the delegate to refuse the applicant a protection visa.
On 8 January 2007, the applicant filed an application for judicial review of the decision of the Tribunal in the Federal Magistrates Court of Australia at Sydney. Those proceedings were numbered SYG54 of 2007. On 11 December 2007 the Honourable Federal Magistrate Nicholls ordered that the application be dismissed with costs.
On 28 December 2007, the applicant filed a notice of appeal from the orders and judgment of Nicholls FM dated 11 December 2007 in the Federal Court of Australia. Those proceedings were numbered NSD2544 of 2007. On 8 May 2008, the Honourable Justice Gilmour ordered that the appeal be dismissed with costs.
On 3 June 2008, the applicant filed an application for special leave to appeal in the High Court of Australia. Those proceedings were numbered S227 of 2008. On 7 August 2008, the Honourable Justices Kirby and Heydon ordered that the application be dismissed.
On 2 September 2008, the applicant filed a second application for judicial review of the decision of the Tribunal handed down on 19 December 2006 in the Federal Magistrates Court of Australia at Sydney. Those proceedings are numbered SYG2271 of 2008.
BACKGROUND 29 September 1977 Applicant born in India 2 May 2006 Applicant arrived in Australia DIMIA 29 May 2006 Applicant lodged application for a protection visa 24 June 2006 Delegate of respondent refused application for a protection visa TRIBUNAL 20 July 2006 Application for review lodged 19 December 2006 Tribunal affirmed delegate’s decision Federal Magistrates Court – SYG54 of 2007 8 January 2007 Application for judicial review filed 27 January 2007 Amended application for judicial review filed 14 August 2007 Hearing before Nicholls FM 11 December 2007 Nicholls FM dismissed the application with costs Federal Court Appellate Jurisdiction – NSD2544 of 2007
28 December 2007 Notice of appeal filed 8 May 2008 Gilmour J dismissed appeal with costs High Court – S227 of 2008 3 June 2008 Application for special leave to appeal filed 7 August 2008 Kirby and Heydon JJ dismissed the application Federal Magistrates Court – SYG2271 of 2008 2 September 2008 Application for judicial review filed 22 September 2008 Directions hearing before Driver FM
The applicant told me from the bar table that he is concerned about the situation in India, insofar as it affects Christians. He would like the Tribunal to examine his case another time. However, as I explained to him, the Tribunal can exercise its powers only once, provided that it makes a valid decision.
The applicant's first challenge to the Tribunal decision in this Court was considered in detail by Nicholls FM. The application was dismissed on 11 December 2007: SZJZV v Minister for Immigration & Anor [2007] FMCA 2013. At [64] of his judgment, his Honour stated that he could discern no jurisdictional error in the Tribunal's decision. His Honour had considered the numerous arguments raised by the applicant about that decision.
The applicant's appeal to the Federal Court was also unsuccessful. His appeal was dismissed by Gilmour J on 8 May 2008: SZJZV v Minister for Immigration [2008] FCA 628. His Honour considered 12 grounds of appeal identified by the applicant and rejected all of them.
On 7 August 2008 the High Court refused an application for special leave to appeal to that Court: SZJZV v Minister for Immigration & Anor [2008] HCASL 458. Their Honours Kirby and Heydon JJ noted at [6] that the papers filed by the applicant in support of his application for special leave to appeal were formulaic.
Nothing new has been raised by the applicant in this present application. He is simply seeking another opportunity to have his protection visa claims examined on the merits. I find that the present application to the Court is an abuse of this Court's process.
I will dismiss the application, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed as an abuse of process, the Minister seeks costs on an indemnity basis. The Minister's costs have been calculated at $1,400. The hourly rate for a greater part of that work is $290 per hour. The work that has been undertaken has been examination of the documents filed by the applicant, the preparation and filing of a response, preparation and filing of Ms Whittemore's affidavit and her attendance at Court today. I am prepared to allow four hours at the rate of $290 per hour in this matter. That produces a costs outcome, on an indemnity basis of $1,160. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,160.
I will also direct that no further application by this applicant to review the decision of the Refugee Review Tribunal handed down on 19 December 2006 or any other migration decision relating to his protection visa application lodged on 29 May 2006 be accepted for filing in this Court, except by leave of a Federal Magistrate.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 September 2008
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