SZLGS v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1658

MIGRATION – RRT decision – previous unsuccessful application for judicial review – no arguable case – application dismissed at show cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), ss.476, 477

SZLGS v Minister for Immigration & Citizenship & Anor [2008] HCASL 543
SZLGS v Minister for Immigration & Citizenship [2008] FCA 893
SZLGS v Minister for Immigration & Anor [2008] FMCA 253

Applicant:

SZLGS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2913 of 2008

Judgment of:

Smith FM

Hearing date:

2 December 2008

Delivered at:

Sydney

Delivered on:

2 December 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

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 for review of the decision of the Refugee Review Tribunal handed down on 14 August 2007 reference 071328506, or for review of the decision of the delegate of the first respondent dated 21 March 2007, 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 12 March 2007, shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2913 of 2008

SZLGS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 11 November 2008, which seeks review under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal handed down on 14 August 2007. The Tribunal affirmed a decision refusing to grant a protection visa to the applicant.
The validity of the Tribunal’s decision has already been upheld in proceedings of the same nature as the present. Nicholls FM dismissed an application on 13 March 2008 (see SZLGS v Minister for Immigration & Anor [2008] FMCA 253). His Honour thoroughly examined the Tribunal’s decision and the contentions made by the applicant, and some further matters not raised by the applicant were also appropriately considered. His Honour was unable to discern any jurisdictional error affecting the Tribunal’s decision.
Reeves J dismissed an appeal on 17 June 2008 (see SZLGS v Minister for Immigration & Citizenship [2008] FCA 893). Although his Honour said the grounds of appeal were “indiscernible”, his Honour examined Nicholls FM’s judgment and said: “I have been unable to detect any error in those reasons, let alone an error that could amount to jurisdictional error”.
Gummow and Kiefel JJ refused an application for special leave to appeal to the High Court (see SZLGS v Minister for Immigration & Citizenship & Anor [2008] HCASL 543). They said: “the application to this Court raises factual matters and does not advance any question of law warranting the grant of special leave to appeal. There is no reason to doubt the correctness of the decisions of the Courts below”.
The application is today listed at its first court date. The Minister has given notice to the applicant that he would seek summary dismissal of the application today on the grounds that no arguable case is raised. The Minister has also invited the Court to dismiss the application summarily on grounds of abuse of process and absence of jurisdiction under s.477 of the Migration Act. However, in my opinion the appropriate basis on which I should dismiss the application today is that it does not raise an arguable case for the relief it claims.
This is apparent on the face of the application, since its asserted grounds of review lack any particulars showing substance. Moreover, by reason of the litigation history I have sketched above, the application is doomed to failure on grounds of issue estoppel, res judicata and abuse of process. In my opinion, it is appropriate to dismiss the application today under r.44.12(1)(a).
Although this is only the first time that the applicant has sought to re‑litigate matters already decided by the Courts, his submissions to me today reveal no understanding of the need to accept the finality of his previous litigation. He appears emotionally attached to the view that he cannot go back to India. I have advised him to take further advice about his immigration status in Australia, but in my opinion it is appropriate to remind him that he cannot keep coming back to court in relation to his unsuccessful protection visa application. I shall therefore direct the Registry that any further application should be referred to me for leave, before it can be filed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 December 2008

The applicant, SZLGS, sought judicial review of a decision made by the Minister for Immigration, the first respondent, to refuse to grant them a protection visa. The second respondent, the Refugee Review Tribunal, had previously affirmed this decision. The matter was heard in the Federal Circuit Court of Australia. The applicant contended that the Minister’s decision was flawed and that they should be granted a protection visa.

The central issue before the court was whether the applicant had established a sufficient arguable case for the grant of a protection visa, and whether the decision-making process adhered to the required legal standards. The applicant argued that the decision was unreasonable, as it failed to properly consider the evidence presented and did not adequately assess the risk of persecution in their home country.

The court found that the applicant had not demonstrated an arguable case for the relief claimed. The evidence provided was deemed insufficient to meet the threshold for a protection visa, and the decision-making process was found to be sound. The court concluded that the Minister’s decision was not unreasonable and that the applicant had not demonstrated a valid basis for the grant of a protection visa. Consequently, the application for judicial review was dismissed.

The court ordered that the application be dismissed under Rule 44.12(1)(a), as it did not raise an arguable case for the relief claimed. Additionally, the applicant was directed to pay the first respondent's costs in the sum of $1,000. The court also prohibited any further applications for review of the specified decisions without 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