SZKBF v Minister for Immigration & Anor

[2008] FMCA 751

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKBF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 751

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision of a delegate of the Minister not to grant a protection visa.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process – where application for review previously heard and decided – application dismissed as abuse of process.

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 rr.13.10, 44.12(1)(a)

SZKBF v Minister for Immigration & Anor [2007] FMCA 695
SZKBF v Minister for Immigration & Citizenship [2007] FCA 1215
SZKBF v Minister for Immigration & Citizenship & Anor [2008] HCASL 60
SAAP & Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24

Applicant: SZKBF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1031 of 2008

Judgment of: Scarlett FM

Hearing date: 26 May 2008

Date of Last Submission: 26 May 2008

Delivered at: Sydney

Delivered on: 26 May 2008

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms Anniwell

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed as an abuse of process.

2. The Applicant is to pay the First Respondent's costs fixed in the sum of $750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1031 of 2008

SZKBF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant is asking the Court to review a decision of the Refugee Review Tribunal. The First Respondent, the Minister for Immigration and Citizenship, has filed a Response saying that the application has not raised an arguable case for the relief claimed under Rule.44.12.(1)(a) of the Federal Magistrates Court Rules and also that the application is an abuse of process.

2. The basis of the Minister's claim is that the application for a review of the Refugee Review Tribunal decision has already been heard. The decision has already been the subject of judicial review where the Applicant has been unsuccessful. He has appealed and his appeal has been dismissed and he has sought special leave to appeal to the High Court of Australia and that has been refused.

Applicant’s Litigation History

1. The Applicant, who is a citizen of India, arrived in Australia on the 27^th July 2006. On the 4^th September 2006, he applied for a Protection visa. The application was refused on the 25^th September 2006.

2. The Applicant then, on the 10^th October in that year, applied to the Refugee Review Tribunal for a review of that decision. The Tribunal in a decision signed on the 7^th December 2006 and handed down on the 4^th January 2007 affirmed the decision of the delegate not to grant the Applicant a protection visa.

3. The Applicant then, on the 18^th January 2007, applied to the Federal Magistrates Court for judicial review of that decision. That application came before Cameron FM on the 30^th April 2007 and, on the 16^th May 2007, the Court dismissed the application.  (See SZKBF v Minister for Immigration & Anor[1]).

   [1] [2007] FMCA 695

4. The Applicant then appealed against that decision. On the 7^th August 2007, in the Federal Magistrates Court, Mansfield J dismissed the appeal and ordered the appellant pay the First Respondent's costs. (See SZKBF v Minister for Immigration & Citizenship[2]).

   [2] [2007] FCA 1215

5. The Applicant then sought special leave to appeal to the High Court of Australia. He filed his application on the 29^th August 2007. On the 27^th March 2008, in the High Court of Australia, Kirby and Hayden JJ, made an order dismissing the application for special leave to appeal. (See SZKBF v Minister for Immigration & Citizenship & Anor[3] ).

   [3] [2008] HCASL 60

Interlocutory Application

1. The Applicant then, on the 23^rd April 2008, brought an application to this Court seeking to have the Court again conduct judicial review of the Tribunal decision. In his application, he claimed that the Tribunal fell into error in three ways:

   i)By failing to investigate his genuine claims under the requirements of the Migration Act.

   ii)He claimed his application is not vexatious or an abuse of process because a Tribunal decision can be reviewed by the Court a second time and he refers to the decision of SZCTH v Minister for Immigration (No. 1) “[2004] FACA 211”.

   iii)The Applicant claimed the Tribunal applied the wrong test by requiring independent evidence of the facts before the Tribunal would accept a claim being made by the Applicant.

2. He accompanied his application with an affidavit in which he also claimed that the Tribunal decision falls within the application of the High Court decision in the matter of SAAP where the Court made a new ruling about the definition of s.424A of the Migration Act.

3. He asks leave to make this new line of argument on the basis that, at the time of his matter before the Court, the decision of SAAPv Minister for Immigration and Multicultural and Indigenous Affairs[4] was not in force and, therefore, there was a miscarriage of justice. None of those arguments carries any weight whatsoever.

   [4] [2005] HCA 24

4. The application contains standard form grounds which this Court has seen all too often. They have been copied by applicant after applicant, after applicant, complete with the grammatical errors and the incorrect citation of the decision of SZCTH v Minister for Immigration.

5. The affidavit in support makes the same claim that the Applicant did not have a chance to argue the decision of the High Court of Australia in SAAP. The fact is that the decision of Cameron FM did, with respect, comprehensively deal with the Applicant's claims.

6. The decision of the Federal Court on appeal comprehensively dealt with the reasons why the Applicant claimed that the Federal Magistrate fell into error. The High Court has found no grounds on which it should give special leave.

7. The reliance on the decision of SZCTH and Minister for Immigration (No.1), the correct citation of which is [2004] FMCA 211, does not assist the Applicant. It is not an authority that any applicant can rely on to ask the Court to rehear an application that has already been heard.

8. The third ground alleging an application of the wrong test is a matter that could have and should have been argued before Cameron FM and, for that matter, Mansfield J.

9. The reliance on the decision in SAAP is misconceived.  It is not correct to say that that decision had not been handed down by the High Court at the time that the matter was before the Court.

10. The High Court handed down the decision in SAAP on the 18^th May 2005. The Applicant had not even arrived in Australia at that time. I note from the affidavit of Brin Ellen May Anniwell, solicitor that the Applicant arrived in Australia on the 27^th July 2006.

11. The application has no merit whatsoever and is an abuse of process.

12. There is an application for costs on behalf of the First Respondent Minister in the sum of $750.00.  It seems to me that that is a most modest amount and I will order accordingly.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  5 June 2008