SZKTZ v Minister for Immigration
[2007] FMCA 1532
•8 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1532 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – proceedings vexatious and an abuse of process. |
| Federal Magistrates Court Rules 2001, r.13.10 |
| SZCEM v Minister for Immigration & Anor [2007] FMCA 1233 |
| Applicant: | SZKTZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1879 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 August 2007 |
| Date of Last Submission: | 8 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to r.13.10 of the Rules of Court the application be dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $1,000.
No further application by this applicant to review any decision under the Migration Act 1958 (Cth) relating to:
a)his protection visa application lodged on 17 October 1997; or
b)any review of a decision relating to that protection visa application by the Refugee Review Tribunal
be accepted for filing in this Court without leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1879 of 2007
| SZKTZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 15 June 2007 the applicant seeks review of a decision of the Refugee Review Tribunal expressed in the application to be dated 22 December 1999.
A copy of that decision is annexure “A” to the affidavit of Angela Margaret Nanson affirmed 4 July 2007.
The Minister alleges in his amended response which was filed in Court today that the applicant has brought previous proceedings both in this Court and in other courts with the view of overturning the decision of the delegate of the Minister in respect of which the Tribunal undertook its review and which produced the decision of 22 December 1999. It has been submitted today that the current proceedings are an abuse of process.
The history of the applicant's litigation following the decision of the Minister's delegate to refuse him a protection visa is set out in Ms Nanson's affidavit and can be summarised as follows:
a)the Tribunal decision was made on 22 December 1999;
b)the applicant sought judicial review of that decision in respect of which Lloyd-Jones FM delivered a judgment on 6 December 2004 dismissing the application;
c)the applicant then appealed Lloyd-Jones FM's decision to the Federal Court where Hill J dismissed the appeal on 8 April 2005;
d)the applicant sought special leave to appeal to the High Court, which application was dismissed on 10 August 2005.
Not to be dissuaded, the applicant then sought a further decision of the Tribunal, which is referred to in Ms Nanson's affidavit. On 16 March 2006 the Tribunal, according to Ms Nanson's affidavit, concluded that it was functus officio and the application for review was unsuccessful.
From that decision of the Tribunal the applicant commenced another set of litigation, namely:
a)proceedings before Driver FM, which his Honour dismissed on 27 April 2006;
b)an appeal to the Federal Court, which Rares J initially dismissed on 11 July 2006 and which dismissal his Honour affirmed in a further decision on 19 September 2006 when the applicant's application to set aside his Honour's earlier orders was dismissed; and
c)a further application for special leave to appeal to the High Court, which was dismissed on 24 May 2007.
Less than a month after the High Court ordered that the application for special leave to appeal be dismissed, the applicant commenced these proceedings, which are to seek review of the original decision of the Tribunal of 22 December 1999 and in respect of which this Court, the Federal Court and the High Court have already dismissed applications for judicial review, appeals or applications for special leave to appeal.
The matters which the applicant would seek to agitate in these proceedings are matters which have been and could have been the subject of the earlier proceedings. It is plain that the applicant will not accept the rulings either of this Court or of other courts of this country or the decisions of the Tribunal that he is not entitled to a protection visa. It is clear to me that these proceedings are an abuse of process and are vexatious and have no prospect of succeeding. Consequently they will be dismissed pursuant to r.13.10 of the Rules of Court.
The Minister has also sought an order similar to the order pronounced by Driver FM in SZCEM v Minister for Immigration & Anor [2007] FMCA 1233. In that case Driver FM said this at [8]:
There have now been a significant number of applications to the Tribunal seeking a second review of a delegate's decision. As this Court and the Federal Court have repeatedly stated, once a Tribunal has validly exercised its statutory function under the Migration Act 1958 it is functus officio. It cannot perform its function again. It is difficult to avoid the conclusion that notwithstanding this obvious legal point, applicants are adopting the practice of applying to the Tribunal a second time when all other apparent avenues have been closed off. Such an application to the Tribunal, as I have said several times before, is an abuse of the Tribunal's process. The application before this Court is a patent abuse of this Court's process. Further, the application is doomed to fail. It has no possibility of success whatsoever.
Although the facts in that case were not absolutely identical to the facts in this case, nevertheless, what his Honour said there has significant relevance to these proceedings. It is apparent that the applicant has sought as creatively as possible to overturn the original decision in relation to the protection visa, has been unsuccessful, but is not dissuaded. In the circumstances, it is appropriate that the Court not entertain further applications by the applicant in respect of the delegate's decision determining that he is not entitled to a protection visa.
Conclusion
Consequently there will be an order directing that no further application by this applicant to review any decision made under the Migration Act 1958 relating to his protection visa application lodged on 17 October 1997 be accepted for filing in this Court without leave of a Federal Magistrate.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 6 September 2007
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