SZLCW v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLCW v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 225

MIGRATION – MRT decision declining jurisdiction – previous RRT decisions – multiple applications for judicial review – no arguable case – abuse of process – application dismissed at show-cause hearing – direction to discourage future filings.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth)

Applicant S1647/2003 v Minister for Immigration [2004] FMCA 952

Applicants S1647/2003 v Minister for Immigration [2006] FMCA 517
Applicant S1647/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 417
ApplicantsS1647/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 995
Applicants S1647/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 639
Applicants S1647/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2007] HCA Trans 207
SZLCW v Minister for Immigration [2007] FMCA 1663
SZLCW v Minister for Immigration & Citizenship [2007] FCA 2006

Applicant:

SZLCW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 38 of 2008

Judgment of:

Smith FM

Hearing date:

19 February 2008

Delivered at:

Sydney

Delivered on:

19 February 2008

REPRESENTATION

Counsel for the Applicant:

Applicant’s husband, by leave

Counsel for the First Respondent:

Ms A Crittenden

Solicitors for the Respondents:

Clayton Utz

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 $1,000.
Direct that no further application by the applicant for review of any decision or conduct of the Minister, of the Refugee Review Tribunal or of the Migration Review Tribunal shall be accepted for filing in any Registry of the Court without the prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 38 of 2008

SZLCW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant has become a very persistent litigator in this Court, in the Federal Court, and in the High Court. She came to Australia in 1997 with her son, and they lodged a combined application for protection visas at that time. It was refused by a delegate, and the delegate's decision was affirmed by a decision of the Refugee Review Tribunal, which appears to have been handed down on 11 June 1998.
The validity of that decision was upheld in this Court by Barnes FM (see Applicant S1647/2003 v Minister for Immigration [2004] FMCA 952).
Stone J refused to extend time for an appeal, on the basis that there was no merit in the grounds put forward (see Applicant S1647/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 417).
The High Court refused special leave, expressing the opinion that an appeal would have no prospects of success (see Applicants S1647/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 639).
The applicant then commenced a fresh proceeding in this Court in Canberra, again challenging the Tribunal’s decision. This was dismissed as an abuse of process by Mowbray FM (see Applicants S1647/2003 v Minister for Immigration [2006] FMCA 517). His Honour ordered the applicants not to file any future proceedings in relation to the decision of the Refugee Review Tribunal without leave of the Court.
Stone J dismissed an appeal from his orders (see ApplicantsS1647/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 995).
The High Court refused special leave again (see Applicants S1647/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2007] HCA Trans 207).
The applicant mother then lodged two new applications for administrative review, one in the Refugee Review Tribunal and the other in the Migration Review Tribunal. In each of them the Tribunal plainly lacked jurisdiction.
The Refugee Review Tribunal’s decision to this effect was challenged in this Court. That application was dismissed by Cameron FM (see SZLCW v Minister for Immigration [2007] FMCA 1663). His Honour expressed the opinion that that proceeding was an abuse of the process of the Court.
Moore J refused leave to appeal (see SZLCW v Minister for Immigration & Citizenship [2007] FCA 2006).
The applicant now has come to this Court again, on an application which purports to challenge the decision of the Migration Review Tribunal, which was handed down on 5 July 2007. It decided that it did not have jurisdiction in relation to the application made to it on 13 June 2007, which appeared to wish to canvass afresh the applicant's refugee status, and possibly also to challenge a condition on a bridging visa which was granted to her in 1997. The Migration Review Tribunal explained clearly why it did not have jurisdiction to review either of those matters. I can see no arguable ground of error in its decision.
The application to this Court which is listed before me today was filed on 8 January 2008. The grounds which are attached attempt, once again, to canvass the merits of the original decision of the Refugee Review Tribunal made in 1998, refusing a protection visa. No ground of any merit in relation to the present decision of the Migration Review Tribunal is shown in the application, in the attached grounds, in the affidavit in support, or in a written submission which was filed today in Court by the applicant's husband, who has again been given leave to represent her today.
Plainly, in my opinion, the present application reveals no arguable case for the relief it claims, and should be dismissed under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Its manifest lack of merit, and the surrounding circumstances, also allow it to be characterised as an abuse of process.
I have also given further thought as to how to prevent the Minister being vexed by further applications to this Court made by the applicant, assisted by her husband. The chronology of her applications confirms that the applicant has become a habitual litigant in this and other Courts, with a motive only of protracting a lawful period of residence by the acquisition of bridging visas conditioned on the existence of litigation.
It appears that the delegates of the Minister are unable or unwilling to decline to continue to give bridging visas, notwithstanding the obvious lack of merits of the litigation which has been pursued in recent years. I can only repeat the regrets in relation to that situation, which were expressed by Moore J in SZASP v Minister for Immigration & Citizenship [2007] FCA 771 at [23]- [29].
So far as this Court is concerned, I propose to make a general direction to the Registry not to accept any application of any sort directed at the Minister or either of the Tribunals by the applicant without first obtaining the prior leave of this Court.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date:

The Federal Magistrates Court of Australia was presented with an application from SZLCW, a Chinese national, challenging the decision of the Migration Review Tribunal (MRT) which declined to exercise jurisdiction over her application. This case is another in a series of litigations by SZLCW against the Minister for Immigration and the MRT, stemming from a series of decisions since 1998 that refused her application for protection visas. The core legal issues for the court to decide were whether the application raised an arguable case for relief and whether the application constituted an abuse of process.

The court examined the procedural history of SZLCW's cases, highlighting her persistent attempts to challenge past decisions through various courts despite previous dismissals on the grounds of lack of merit and abuse of process. The court found that the current application did not present any arguable ground of error in relation to the MRT's decision. It also determined that the application, given its lack of merit and the context of previous litigation, was an abuse of process. Furthermore, the court noted that SZLCW's actions appeared to be driven by a desire to prolong her stay in Australia through continuous litigation, even though her cases had no merit. Consequently, the court dismissed the application for failing to raise an arguable case and also for being an abuse of process. The court further imposed a direction that any future applications by SZLCW must obtain prior leave from the court.

The court's final orders were that the application be dismissed on the basis that it did not raise an arguable case for the relief claimed and that SZLCW was to pay the first respondent’s costs. Additionally, the court directed that no further applications by SZLCW for review of any decision or conduct of the Minister, the Refugee Review Tribunal, or the MRT would be accepted without the prior leave of the Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established