SZKHI v Minister for Immigration
[2008] FMCA 1656
•2 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1656 |
| MIGRATION – RRT decision – repeated applications for judicial review – no arguable case – application dismissed at first court date. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.11(3), 44.12(1)(a) Migration Act 1958 (Cth), s.476 |
| SZKHI v Minister for Immigration & Citizenship [2008] FCA 1596 SZKHI & Anor v Minister for Immigration & Anor [2008] FMCA 1094 SZKHI & Anor v Minister for Immigration & Citizenship & Anor [2008] HCASL 172 SZKHI v Minister for Immigration & Citizenship [2007] FCA 1735 SZKHI & Anor v Minister for Immigration & Anor [2007] FMCA 1061 |
| First Applicant: | SZKHI |
| Second Applicant: | SZKHJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2884 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 2 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2008 |
REPRESENTATION
| Counsel for the Applicants: | Applicants in person |
| Counsel for the First Respondent: | Ms K Hooper |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 6 February 2007 reference 060875576, or for review of the decision of the delegate of the first respondent dated 27 September 2006, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa received on 13 September 2006, shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2884 of 2008
| SZKHI |
First Applicant
| SZKHJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 7 November 2008, in which the applicants seek review under s.476 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal. The application incorrectly refers to the decision as having been made in 2008, but the affidavit in support identifies a decision of the Tribunal handed down on 6 February 2007.
As the application admits, there have been previous applications for judicial review of the same decision of the Tribunal. The applicants’ first application was dismissed by Turner FM on 19 June 2007 (see SZKHI & Anor v Minister for Immigration & Anor [2007] FMCA 1061). His Honour considered numerous grounds of jurisdictional error, and was not persuaded that any of them were made out.
The applicants appealed, and their appeal was dismissed by Stone J on 8 November 2007 (see SZKHI v Minister for Immigration & Citizenship [2007] FCA 1735). Her Honour said:
11As I have said the Tribunal’s reasons ultimately were based on the fact that the claims made by the appellants do not point to a Convention reason. As such the Tribunal had no alternative but to dismiss the application. The grounds argued before his Honour in the Federal Magistrates Court do not address this difficulty with the application and were properly rejected by his Honour. The appeal before me must suffer the same fate. There is no jurisdictional error to which the appellants have been able to point in the Tribunal’s reasons. The Federal Magistrate did not see one and nor can I. His Honour was correct to dismiss the application for review and therefore the appeal must be dismissed with costs.
An application for special leave to appeal was refused by Gummow and Kiefel JJ (see SZKHI & Anor v Minister for Immigration & Citizenship & Anor [2008] HCASL 172). Their Honours said:
The Tribunal’s decision turned upon its view that the applicants’ claims did not reveal a Convention‑based fear of harm, a finding of fact which was open to the Tribunal. There is no reason to doubt the correctness of the decisions below.
The applicants then commenced a second proceeding in this court concerning the same Tribunal decision. This was dismissed summarily by Raphael FM on 28 July 2008 (see SZKHI & Anor v Minister for Immigration & Anor [2008] FMCA 1094). His Honour thought that the proceeding was an abuse of the processes of the court, as well as a matter that was res judicata.
Edmonds J dismissed an application for leave to appeal (see SZKHI v Minister for Immigration & Citizenship [2008] FCA 1596).
The applicants have now commenced their third application for review of the Tribunal’s decision. Today is its first court date listing, but I am satisfied that the applicants are on sufficient notice that the Minister would seeking the summary dismissal of the application today.
The Minister’s response invites me to characterise the proceedings as an abuse of process, and also to find that the applicants are vexatious litigants within the meaning of r.13.11(3) of the Federal Magistrates Court Rules 2001 (Cth). However, in my opinion the better ground on which to dismiss the application today is that it does not raise an arguable case for the relief it claims. In my opinion, this is plain for two reasons.
First, the grounds of the application lack any particulars for the three contentions of jurisdictional error which are made, so as to give any substance to them. Secondly, and more importantly, it appears to me that the proceeding is doomed to failure on grounds of res judicata and discretion due to the previous litigation. In all the circumstances, I think it appropriate to dismiss the application today under r.44.12(1)(a).
I have endeavoured to explain to the applicants that they must accept the outcome of their previous litigation as final. However, I consider it appropriate to give a direction to the Registry which will require any further attempt by them to litigate the same matters in this Court to be referred to me for leave, before any further application can be filed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 12 December 2008
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