SZKHI v Minister for Immigration

[2008] FMCA 1094

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKHI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1094

MIGRATION – Application for summary dismissal – where applicant had previously exercised all legal powers of review – where proceedings an abuse of process.

Migration Act 1958 (Cth), s.477

SZKHI v Minister for Immigration [2007] FMCA 1061
SZKHI v Ministerfor Immigration [2007] FCA 1735
SZKHIv Minister for Immigration [2008] HCASL 172

First Applicant: SZKHI

Second Applicant: SZKHJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1289 of 2008

Judgment of: Raphael FM

Hearing date: 28 July 2008

Date of Last Submission: 28 July 2008

Delivered at: Sydney

Delivered on: 28 July 2008

REPRESENTATION

Applicant in person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $1,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1289 of 2008

SZKHI

First Applicant

SZKHJ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me an application by the Minister for summary dismissal of an application for judicial review of a decision of the Refugee Review Tribunal originally filed in this court on 20 May 2008. The application sought review of a decision of the Tribunal dated 17 January 2007 that was handed down on 6 February 2007 (see Annexure A to the shorter affidavit of Katherine Hooper dated 2 June 2008). 

2. There are two bases for the Minister's application. The first is that the application to this court is out of time because it was not filed within 28 days of actual notification of the decision as required by s.477(1) Migration Act 1958 (Cth) (the “Act”).The court is not permitted to provide any extension of that time (s.477(2)(a) of the Act). I am satisfied this ground is made out.

3. The second basis is that this is a decision in respect of which the applicant has exercised all his legal powers of review having had the matter considered by the Federal Magistrates Court: SZKHI v Minister for Immigration [2007] FMCA 1061 (19 June 2007), by the Federal Court: SZKHI v Ministerfor Immigration [2007] FCA 1735 (8 November 2007) and by the High Court: SZKHIv Minister for Immigration [2008] HCASL 172 (24 April 2008). In those circumstances the proceedings, which seek to have reviewed by this court the same decision of the Tribunal as was considered by all those previous courts, constitutes, to my mind, an abuse of the processes of this court as well as an application that is in respect of a matter that is res judicata.

4. The applicant and his wife appeared before me today.  They raised some additional grounds concerning the Tribunal decision but did not attempt to argue the application that I have just considered.  The substantive application is dismissed.  The applicants are to pay the first respondent's costs which are assessed in the sum of $1250.00.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  1 August 2008