SZKUP v Minister for Immigration

[2008] FMCA 987

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUP & ANOR & MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 987

MIGRATION – Refugee Review Tribunal – whether the filing of the application was an abuse of the Court’s process.

Migration Act 1958 (Cth), ss.424A; 474

Walton v Gardiner (1993) 177 CLR 378
Rogers v The Queen (1994) 181 CLR 251

First Applicants: SZKUP

Second Applicants: SZKUQ

First Respondents: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondents: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1578 of 2008

Judgment of: Emmett FM

Hearing date: 8 July 2008

Date of Last Submission: 8 July 2008

Delivered at: Sydney

Delivered on: 8 July 2008

REPRESENTATION

The Applicant appeared in person assisted by a Gujarati interpreter

Solicitors for the Respondent: Ms N. Johnson, Clayton Utz Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1578 of 2008

SZKUP

First Applicant

SZKUQ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order from the Court on the first Court date this morning that the proceeding commenced by way of application on 19 June 2008 be dismissed as vexatious and an abuse of the process of this Court.

2. The first respondent tendered a letter dated 30 June 2008 to the applicant informing him that the first respondent would seek such an order today. The letter was marked Exhibit 1R. The applicant confirmed that he received Exhibit 1R.

3. In support of the orders sought, the first respondent read the affidavit of Miriam Mafessanti, sworn 27 June 2008. Ms Mafessanti's affidavit annexed a copy of the decision of the Refugee Review Tribunal (“the Tribunal”) in which the Tribunal affirmed the decision of the delegate of the first respondent (“the Delegate”) to refuse the applicant a protection visa. That Tribunal decision was made on 24 May 2007.

   
   

   The affidavit annexes a copy of the decision of Scarlett FM who dismissed the applicant's application for judicial review of the Tribunal's decision on 6 September 2007 on the basis that the decision was not affected by jurisdictional error and was therefore a privative clause decision pursuant to s.474 of the Migration Act 1958 (Cth)

   
   

   (“the Act”).  

4. The affidavit also annexed a copy of the decision of Jessup J of the Federal Court of Australia. On 18 February 2008, Jessup J dismissed the applicant's appeal to the Federal Court in respect of Scarlett FM's decision. In the course of dismissing the appeal, Jessup J also dismissed an application by the applicant for leave to advance new legal arguments on the basis that they were not raised before Scarlett FM and, in any event, did not have reasonable prospects of success.

5. The affidavit also annexed a copy of the order of the High Court of Australia made 5 June 2008 dismissing the applicant's application for special leave in respect of the decision of Jessup J of the Federal Court of Australia.

6. The applicant filed the present application before this Court on 19 June 2008 and identified the following grounds:

   “1. The RRT denied proper application of law to the applicants.

   2. The RRT denied natural justice to the applicants.

   3. The RRT did not follow due procedure.”

7. None of the grounds are supported by particulars and made bare assertions of error. 

8. In reading the decision of Scarlett FM, it is apparent that those grounds were the types of complaints made before Scarlett FM, who dismissed the application before him on the basis that the Tribunal’s decision was not affected by jurisdictional error. In the course of doing so, Scarlett FM considered whether or not the applicants had been denied procedural fairness, whether the Tribunal had complied with the s.424A of the Act and whether the Tribunal's decision was made according to law.

9. In the light of the history of the judicial review of the Tribunal's decision and the applicant’s exhaustion of his appeal rights, I am satisfied that it is vexatious and an abuse of process for the applicant to file the current proceeding before this Court.  In the circumstances, to allow the application to continue would bring the administration of justice into disrepute (Walton v Gardiner (1993) 177 CLR 378 at 393 and Rogers v The Queen (1994) 181 CLR 251 at 255-256).

10. Accordingly, the proceeding, commenced by way of application filed on 19 June 2008, is dismissed as an abuse of process of this Court. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  22 July 2008