SZJZW v Minister for Immigration
[2008] FMCA 657
•16 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 657 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision of a delegate of the Minister not to grant protection visas. PRACTICE & PROCEDURE – Summary dismissal – abuse of process – where application for review previously heard and decided – competence – application dismissed as abuse of process. |
| Federal Magistrates Court Rules 2001, r.13.10 |
| SZJZW & Anor v Minister for Immigration & Citizenship & Anor [2008] HCASL 43 SZJZW & Anor v Minister for Immigration & Anor [2007] FMCA 656 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZJZW v Minister for Immigration & Citizenship [2007] FCA 1197 |
| First Applicant: | SZJZW |
| Second Applicant: | SZJZX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 865 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: | No Appearance |
| Solicitor for the Respondent: | Ms Hooper |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is summarily dismissed under the provisions of Rule.13.10 of the Federal Magistrates Court Rules 2001.
The Applicants are to pay the First Respondent's costs fixed in the sum of $1,800.00.
No further application for a review of the decision of the Refugee Review Tribunal signed on 29 November 2006 and handed down on 19 December 2006 is to be accepted for filing without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 865 of 2008
| SZJZW |
First Applicant
| SZJZX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of the decision of the Refugee Review Tribunal that was signed on 29th November 2006 and handed down on 19th December 2006. The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Citizenship not to grant the Applicant a Protection (Class XA) visas.
Notice of Motion
The First Respondent, the Minister for Immigration & Citizenship, has filed an application in a case moving the Court for orders:
a)That the application be summarily dismissed as incompetent in that:
i)The Applicants have no reasonable prospect of successfully prosecuting the proceeding or claim.
ii)The proceeding or claim for relief is frivolous or vexatious.
iii)The proceeding or claim for relief is an abuse of the process of the Court.
b)That the Registry of the Court be directed that no further application for review of a decision of the Refugee Review Tribunal signed on 29 November 2006 and handed down on 19 December 2006, or for review of the decision of the delegate of the First Respondent dated 7 July 2006, or for review of any other administrative decision or action relating to the application for a protection visa lodged on 16 June 2006 shall be accepted for filing without prior leave of the Court.
The application in the case is supported by an affidavit of Katherine Hooper, solicitor, affirmed on 29th April 2008. The substantive application came before the Court on its First Court Date, 5th May 2008. At that stage the First Respondent had already filed the application and supporting affidavit seeking summary dismissal. Accordingly, I listed the matter for hearing today at 11:30am.
The First Applicant was present in person on 5th May 2008 and had the assistance of an interpreter in the Gujarati language. Neither Applicant has attended Court this morning. The matter was called at 11:30am and there was no appearance. I stood the matter down and called the application again at 11:45am. There was still no appearance. I note that there is no appearance by or on behalf of the Applicants at 10:51am.
No message has been received from the Applicants or anyone on their behalf indicating that they had been hindered, delayed or prevented from attending Court for any reason. It would appear to me that there is very little likelihood, if any, of the Applicants attending Court now.
The Respondent's solicitor has very sensibly written to the First Applicant on 6th May 2008 at both addresses given by the Applicants, a street address and a post office box number in Griffith. The letter advised the Applicants that the matter had been listed in this Court, Courtroom 7B, level 7, John Madison Tower, 88 Goulburn Street, Sydney for a directions hearing, it says, on 16th May 2008 at 11:30am. The letter goes on to inform the Applicants:
If you do not attend we may seek to have the matter dismissed with costs for non‑appearance.
Whilst the application is not strictly listed for directions but indeed is listed for hearing of an interlocutory application, it is quite clear that the Applicants have been well and truly informed, both by the Court and by the solicitors for the Respondent Minister, that the matter is on today and that orders may be made in their absence if they do not appear.
The Federal Magistrates Court Rules provide, in r.13.03A (e) that if a party to a proceeding is absent from a hearing, the Court may proceed with the hearing generally or in relation to any claim for relief in the proceeding.
The claim for relief in the proceeding is indeed the interlocutory application for summary dismissal brought by the First Respondent. The solicitor for the First Respondent is here and ready, willing and able to deal with that matter.
In my view, it is appropriate for me to deal with the interlocutory application. It is an application for summary dismissal and it is based on the Applicant's litigation history.
Applicant’s litigation history
I have read the affidavit of Katherine Hooper of 29th April 2008. I have read the First Respondent's outline of submissions in support of the application for summary dismissal. That outline of submissions contains a very useful background and chronology.
I note that the Applicants arrived in Australia on 7th May 2006 and applied for protection visas on 16th June in that year. The application for protection visas was refused by the delegate of the Minister on 7th July 2006 whereupon the Applicants applied to the Refugee Review Tribunal on 2nd August 2006 for review of that decision.
The Refugee Review Tribunal, in a decision signed on 29th November and handed down on 19th December 2006, affirmed the decision not to grant the Applicants Protection (Class XA) visas. The Applicants then sought judicial review of the Tribunal decision of the Federal Magistrates Court on 8th January 2007.
The application was heard by Cameron FM on 3rd May 2007 and his Honour handed down a decision that day dismissing the application with costs. The Applicants then appealed against the decision of his Honour and the appeal was heard by Mansfield J on 9th August 2007. His Honour dismissed the appeal with costs.
The Applicants then sought special leave to appeal to the High Court of Australia. On 27th March 2008 Kirby and Haydon JJ dismissed the application for special leave. (See SZJZW & Anor v Minister for Immigration & Citizenship & Anor[1])
[1] [2008] HCASL 43
What the Applicant then proceeded to do is bring another application in this Court to review the same decision of the Refugee Review Tribunal. That application and an affidavit in support were filed on 10th April 2008. That application sets out three 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.
When the application for the judicial review was before Cameron FM on 3rd May 2007, his Honour noted the grounds of the application as follows:
i)RRT decision was infected by jurisdictional error and breached procedural fairness.
ii)The decision now falls within the application of SAAP, which gives new definition of s.424A.
iii)RRT breached s.424A of the Migration Act, failed to disclose adverse information.
His Honour noted at the hearing before him the Applicant, meaning the First Applicant, also took issue with the findings reached by the Tribunal. (See SZJZW & Anor v Minister for Immigration & Anor[2].)
[2] [2007] FMCA 656 at [8] and [9]
His Honour then went on to consider all of the grounds both in the application and as put to him at the hearing. The reference to SAAP is, of course, a reference to the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[3] which was handed down on 18th May 2005.
[3] [2005] HCA 24
In my view, with respect to his Honour, the decision of 3rd May 2007 contains a detailed and comprehensive review of the Tribunal's decision.
In any event, of course, Mansfield J considered the appeal and the decision of Cameron FM. It appears to me, with respect, that his Honour's judgment contains a comprehensive examination of the decision in the Federal Magistrates Court. I note that his Honour went on to give independent consideration saying:
“I have also independently considered whether there is some other basis upon which the appellant might have demonstrated jurisdictional error on the part of the Tribunal.”[4]
His Honour went on to consider the various issues and dismissed the appeal.
[4] SZJZW v Minister for Immigration & Citizenship [2007] FCA 1197 at [33].
The High Court of Australia dismissed the application for special leave to appeal.
Conclusion
It is quite clear to me that there is no ground upon which this Court can conduct a further review of the decision of the Refugee Review Tribunal. The application for judicial review has been heard, dismissed and the appeals and applications for special leave to appeal have been unsuccessful. There is no further avenue for the Applicants to pursue their application for judicial review of the Tribunal decision.
This application is spurious. It appears to me to be an obvious example of an abuse of process. It appears to me to have been brought for no other reason than to set up legal proceedings in order to prolong the Applicants' stay in Australia. As an abuse of process it should be summarily dismissed with costs and I propose to do just that.
The solicitor for the Minister, Ms Hooper seeks the sum of $1,800.00 in costs. I consider that is an appropriate figure. I also propose to make orders restraining the Applicants from coming back to this Court for another attempt at reviewing the same decision of the Refugee Review Tribunal decision which has already been comprehensively dealt with.
For those reasons, I make the following orders, perhaps not quite as comprehensive as the Minister asks but in my view they will suffice.
i)The Application is summarily dismissed under the provisions of rule 13.10.
ii)The Applicants to pay the First Respondent's costs fixed in the sum of $1,800.00.
iii)No further application for a review of the decision of the Refugee Review Tribunal signed on 29 November 2006 and handed down on 19 December 2006 is to be accepted for filing without leave of the Court.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 May 2008
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