SZLHC & Ors v Minister for Immigration

[2007] FMCA 2026

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLHC & ORS v MINISTER FOR IMMIGRATION [2007] FMCA 2026

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Minister's delegate not to grant protection visa – second application – other judicial review proceedings.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process  – res judicata – issue estoppel – litigation guardian – where two of the applicants are children.

Migration Act 1958 (Cth), ss.66, 412, 476, 494B
Federal Magistrates Court Rules2001, rr.11.11, 13.10, 14.12

SBNC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 200
SBNC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 843
SBNC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 137

First Applicant: SZLHC

Second Applicant: SZLHD

Third Applicant: SZLHE

Fourth Applicant: SZLHF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 2739 of 2007

Judgment of: Scarlett FM

Hearing date: 3 December 2007

Date of Last Submission: 3 December 2007

Delivered at: Sydney

Delivered on: 5 December 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: In Person

Solicitor for the Respondents: Ms Combs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application is dismissed as an abuse of process.

2. The First and Second Applicant are to pay the Respondent’s costs in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2739 of 2007

SZLHC

First Applicant

SZLHC

Second  Applicant

SZLHC

Third Applicant

SZLHC

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REASONS FOR JUDGMENT

Application

1. The Respondent, the Minister for Immigration and Citizenship, asks the court to dismiss the Applicant’s application as an abuse of process. The Minister claims that the Applicants have previously brought this same application to court and have been unsuccessful all the way to the High Court of Australia. The Minister says that the Applicants have then started the same proceedings again by filing a fresh application in this court.

2. The Applicants are citizens of Fiji. They ask the court to set aside a decision of Minister’s delegate made on 7^th February 2005, refusing the application for a protection visa.

Background

1. The Applicants arrived in Australia on 27^th November 2004. The First Applicant applied for a Protection Visa (sub class 886) on 7^th December 2004. That application was refused on 7^th February 2005. The First Applicant then lodged an application for review of the delegate’s decision on 27^th May 2005.

Application for Review by the Refugee Review Tribunal

1. The Tribunal noted that the application for review was received outside the prescribed time limit. Section 412(1)(b) of the Migration Act 1958 requires an application for review to be lodged at a registry of the Tribunal within a period not later than 28 days after the notification of the decision. The First Applicant had claimed that she was not aware of the delegate’s decision until 20^th May 2005 but the Tribunal that the notice sent to her was sent in accordance with s. 494B of the Act to her last known address and that the notice complied with s. 66(1).

2. The Tribunal also found that it had no power to extend the time limit provided by the Act for any reason. The Tribunal found that the 28 day period within which the review application had to be lodged ended on 16^th March 2005 and the Tribunal did not receive the application for review until 27^th May 2005.

3. The Tribunal found that the review application was received outside the mandatory time limit. Thus it was not a valid application and the Tribunal had no jurisdiction to review the delegate’s decision.

The Application to the Federal Magistrates Court

1. The substantive application was filed on 5^th September 2007. It is an application for review of the delegate’s decision of 7^th February 2005. The application seeks:

   a)an order in the nature of certiorari to quash the Respondent’s decision;

   b)an order in the nature of mandamus requiring the Respondent to exercise his power according to law;

   c)an order for costs; and

   d)such further or other orders as the court deems fit.

2. The applicants rely on the following grounds:

   i)The delegate committed jurisdictional error because the delegate constructively erred in its application as to what amounted to serious harm under s 91R(2) of the Migration Act.

   ii)The delegate committed jurisdictional error by failing to make findings in relation to claims made by the juvenile applicants that they would specifically suffer from persecution in their education.

3. The application first came before Turner FM on 11^th October 2007. His Honour noted that the Third and Fourth Applicants, SZLHE and SZLHF, were infants and ordered the First Applicant to file and serve an affidavit as provided by Rule 11.11(2) consenting to her appointment as their litigation guardian.

4. Turner FM also ordered the applicants to advise the court and the respondent in writing if there had been any previous judicial review/appeal proceedings in relation to the decision sought to be reviewed.

5. The First Applicant subsequently filed an affidavit consenting to her appointment as litigation guardian. She also forwarded a letter to the court on 30^th October 2007 saying:

   I wish to advise that there were previous judicial review and appeal proceedings in relation to the decision of the delegate of the Minister of Immigration and Citizenship. Such proceedings were in the Federal Magistrate (sic) Court and the High Court of Australia.

6. It now appears that this letter was not strictly correct.

7. The Minister has filed an Amended Response, claiming the following:

   (1)The proceeding is an abuse of the process of the Court [Rule 13.10(c)].

   (2)There have been other judicial review proceedings in relation to the decision [Rule 44.06 (2)(c)].

   (3)The other judicial review proceedings create:

   (i)res judicata; or

   (ii)issue estoppel; or

   (iii)Anshun estoppel.

   (4)The application has not raised an arguable case for the relief claimed [Rule 44.12(1)(a)].

8. The Minister relies on an affidavit affirmed by Laura Gazi (as she then was), solicitor, on 8^th October 2007. That affidavit sets out in a concise but comprehensive way the applicants’ litigation history and I propose to rely on that affidavit for the purpose of this decision, quoting from it where necessary.

9. On 16^th September 2005 the applicants filed an application for review of the delegate’s decision in the South Australian Registry of the Federal Court of Australia. A copy of the application was annexed to Ms Gazi’s affidavit. On 10^th March 2006, Finn J dismissed the application with costs.[1]

   [1] SBNC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 200.

10. On 11^th April 2006 the applicants filed an application for extension of time to file and serve a Notice of Appeal in the South Australian Registry of the Federal Court and on 5^th July 2006 Besanko J made orders extending the time for filing and service of the Notice of Appeal.[2]

    [2] SBNC v Minister for Immigration & Multicultural Affairs [2006] FCA 843

11. On 26^th August 2006 the Full Court of the Federal Court (French, Lander & Besanko JJ) dismissed the applicants’ appeal with costs.[3]

    [3] SBNC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 137

12. On 21^st August 2007 the applicants filed in the Adelaide Registry of the High Court an application for special leave to appeal from the decision of the Full Court. On 14^th June 2007 the High Court dismissed the application for special leave to appeal.

13. The applicants then, on 5^th September 2007, field the present application for review of the delegate’s decision.

Conclusions

1. I have compared the applicants’ present application with the copy of the application filed in the Federal Court on 16^th September 2005 (which forms annexure “C” to Ms Gazi’s affidavit). They are essentially the same application, seeking the same relief on the same grounds.

2. The First Applicant conceded that she is bringing the same case, but sought to justify her actions by complaining that she had been denied a hearing on the merits by the Refugee Review Tribunal.

3. The applicants’ case was not heard by the Tribunal because the application for review was out of time. The Tribunal correctly found that the time limit in s. 412 of the Migration Act was mandatory.

4. It will not avail the applicants to bring an application to this court that has already been heard and dismissed by the Federal Court. The applicants’ appeal to the Full Court of the Federal Court has been dismissed. The application for special leave to appeal to the High Court has been dismissed.

5. This Court has no power to hear a case that has already been heard and dismissed. The Minister’s submission that the application for review is an abuse of the process of the court must be upheld. There is, quite obviously, no arguable case for the relief claimed.

6. The application will be dismissed as an abuse of process.

7. This is a proper matter for an order for costs. Ms Combs, for the Minister, assesses the Minister’s costs at $2500.00, which I consider to be reasonable in the circumstances. However, the Third and Fourth Applicants are infants and have played no part in these proceedings. In my discretion I propose to order costs only against the First and Second Applicants.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  5 December 2007