SZLDH v Minister for Immigration

[2008] FMCA 1618

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDH v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1618

MIGRATION – RRT decision – repeated application for judicial review – no arguable case shown – dismissed at first court date in absence of applicant.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(e), 16.05(2)(a), 44.12(1)(a)
Migration Act 1958 (Cth), s.477

Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
SZLDH v Minister for Immigration & Citizenship [2008] FCA 819
SZLDH v Minister for Immigration & Anor [2007] FMCA 1601
SZLDH v Minister for Immigration & Anor (No.2) [2007] FMCA 2122

Applicant: SZLDH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2828 of 2008

Judgment of: Smith FM

Hearing date: 25 November 2008

Delivered at: Sydney

Delivered on: 25 November 2008

REPRESENTATION

Counsel for the Applicant: No appearance by or on behalf of the applicant

Counsel for the First Respondent: Ms B Anniwell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed under Rules 13.03C(e) and 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs on an indemnity basis in the sum of $1,500. 

3. Direct that no further application for review of the decision of the Refugee Review Tribunal dated 6 April 1999 reference N97/19084, or for review of the decision of the delegate of the first respondent dated 31 July 1997, 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 24 June 1997, shall be accepted for filing without prior leave of the Court. 

4. Order 3 does not apply in respect of any application to set aside these orders under r.16.05(2)(a), provided that such an application is made no later than 22 December 2008.

5. The first respondent must within the next 2 days send to the applicant a copy of today’s order. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2828 of 2008

SZLDH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is the first court date in this application, which was filed on 31 October 2008. In the circumstances which I shall narrate, I consider it appropriate to take the unusual course of proceeding in the absence of the applicant under r.13.03C(e) of the Federal Magistrates Court Rules 2001 (Cth), to consider whether the application raises an arguable case for the relief it claims. I shall also consider whether, as requested by the Minister in his response, the Court should direct the Registry not to receive further applications by the applicant in relation to his protection visa application without the leave of the Court.

2. The applicant was put on notice that the Minister would be moving for both an immediate hearing of his application for summary dismissal, and for a direction of the sort I have indicated.  This was warned to the applicant in a letter dated 13 November 2008, which also indicated that costs on an indemnity basis would be sought.  Confirmation was then given in a letter dated 20 November 2008, which enclosed the Minister’s response. 

3. The applicant’s awareness that the Minister would be seeking these orders is confirmed by a facsimile from the applicant, which was received by the solicitors for the Minister yesterday.  It enclosed copies of the solicitors’ latest letter, and also a document signed by Dr Peter Calaizis dated 21 November 2008.  This letter states: 

   This man was seen today.  He tells me his mother who is in India is unwell and this is causing him to feel more depressed and he feels he cannot attend the immigration interview that is scheduled for him later this month. 

   I am writing this letter on his request and stating the information as given to me. 

   He feels he will not be able to attend for another 2 weeks. 

4. I note that in the course of previous proceedings before Scarlett FM, the doctor previously gave a letter supporting an adjournment application. That letter did give a medical opinion, albeit of a rather oblique sort, supporting the applicant’s unfitness to attend the hearing (see [9] and [10] of SZLDH v Minister for Immigration & Anor (No.2) [2007] FMCA 2122). However, a medical opinion of unfitness is notably absent from the doctor’s present letter.

5. I am therefore not satisfied as to any unfitness of the applicant to attend today’s hearing.  I am not satisfied that the applicant is absent today for any reason other than a wish to protract the litigation he has brought in this Court.  My opinion in that respect is confirmed by the previous history of litigation of the applicant which I shall recount. 

6. The Minister’s response sets out arguments in support of contentions that the application was out of time under s.477 of the Migration Act 1958 (Cth), that it is an abuse of process, and also that it does not raise an arguable case. There appears to me to be prima facie merit in the first two contentions, but I do not consider it necessary for me to rule upon those matters. As I shall explain, I have reached a firm conclusion that the application does not raise an arguable case and is appropriately dismissed under r.44.12(1)(a) of the Federal Magistrates Court Rules.

7. The applicant arrived in Australia from India in April 1997.  He lodged an application for a protection visa with the Department of Immigration on 24 June 1997, and this was refused by a delegate on 31 July 1997. 

8. The applicant then applied for review by the Refugee Review Tribunal.  His visa application had made unclear claims that the applicant, a young Sikh from the Punjab, feared persecution by reason of involvement in the Sikh Student’s Federation and the Khalistan movement.  However, he did not attend a hearing to which he was invited by the Tribunal, and details of his claims were, in the Tribunal’s opinion, “so general and lacking in detail that the Tribunal is unable to establish the relevant facts”.  The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations.  It therefore affirmed the delegate’s decision in a decision dated 6 April 1999. 

9. The applicant did nothing to challenge the Tribunal’s decision until November 2002, when he joined the notorious Muin represented proceeding in the High Court, as did thousands of other such persons (see: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). He commenced his own proceedings in the High Court for an order nisi in 2003, and these were remitted to the Federal Court.  Emmett J refused his application with many others in February 2004 (see Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289). His Honour did so on the basis that the application lacked any apparent merit, but noted an undertaking by the Minister that objection would not be taken if fresh proceedings were brought promptly in this court.

10. However, the applicant did not commence fresh proceedings in this court until August 2007.  He then commenced proceeding SYG2347 of 2007.  The matter proceeded in Scarlett FM’s docket, and gave rise to a dismissal for non‑attendance at a show cause hearing.  An application to set aside the dismissal was eventually refused by Scarlett FM after hearing the applicant (see SZLDH v Minister for Immigration & Anor [2007] FMCA 1601, and SZLDH v Minister for Immigration & Anor (No.2) [2007] FMCA 2122). Scarlett FM said that he did not accept the applicant’s explanation for his absence from the original hearing, and also considered that the applicant had no arguable case for review of the decision of the Refugee Review Tribunal. He examined a number of grounds which had been put forward in the documents filed by the applicant, and which plainly lacked merit. His Honour described the application as “totally meritless proceedings”, and said: “one can only speculate why the Minister’s Department has not taken steps to remove the applicant from Australia during the last three years”. 

11. The applicant applied to the Federal Court of Australia, out of time, for leave to appeal the decision of Scarlett FM.  He put forward new grounds and explanations, but Cowdroy J could find no error in Scarlett FM’s judgment, and was satisfied that no substantial injustice would result if leave were refused even “supposing the decision to be wrong” (see SZLDH v Minister for Immigration & Citizenship [2008] FCA 819).

12. As I have indicated, the applicant has now brought his present application seeking again to litigate the validity of the Tribunal’s 1999 decision.  He has filed an application, an affidavit and a written submission.  These make general assertions concerning the merits of the Tribunal’s decision, and repeating his claims to be a refugee in very general terms.  Such contentions cannot justify the bringing of the application to the Court, since they are not matters that the Court itself could determine. 

13. The grounds of his application appear to repeat contentions previously put to Scarlett FM.  So far as I can detect, the only contention of jurisdictional error is that the Tribunal failed to take into account the evidence before it.  However, in my opinion, this is plainly not arguable, since the Tribunal’s reasons show that it was aware of the material which had come to it in the Department’s file, but was unable to find sufficient detail to allow it to be satisfied as to the refugee claims. 

14. In my opinion, the present application does not raise any arguable case for the relief claimed, and has the same character as the application considered by Scarlett FM.  I therefore propose to dismiss the application today. 

15. Given the applicant’s history of litigation, I consider it appropriate to make a direction to the Registry that no further application relating to his protection visa application shall be received by the Court without leave of the Court.  This will require that any such application should be referred to me for consideration.  The applicant will need to attend before me before he gets that leave, to explain the merits of his proposed case. 

16. I shall exclude from that direction an application, if brought promptly, to set aside my present orders under r.16.05(2)(a). However, the applicant will have to attend before me to explain his absence from today’s hearing, and also to point to some merit in his substantive application.

17. In my opinion, the circumstances which I have narrated above justify the making of a costs order on an indemnity basis, as is sought by the Minister. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  4 December 2008