SZLLC v Minister for Immigration

[2009] FMCA 204

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLLC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 204

MIGRATION – RRT decision – previous litigation – no arguable case – application dismissed at first court date in absence of applicants.

Federal Court of Australia Act 1976 (Cth), s.25(2B)(bb)(ii)
Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1)(e), 16.05(2)(a), 44.12, 44.12(1)(a)
Migration Act 1958 (Cth), s.476

SZLLC & Anor v Minister for Immigration & Anor [2008] FMCA 402

First Applicant: SZLLC

Second Applicant: SZLLD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 279 of 2009

Judgment of: Smith FM

Hearing date: 3 March 2009

Delivered at: Sydney

Delivered on: 3 March 2009

REPRESENTATION

Counsel for the Applicants: No appearance by or on behalf of the applicants

Counsel for the First Respondent: Mr G Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. 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. 

2. The applicants must pay the first respondent’s costs in the sum of $1,600. 

3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 6 September 2007 reference 071618561, or for review of the decision of the delegate of the first respondent dated 6 July 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 22 June 2007, shall be accepted for filing without prior leave of the Court. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 279 of 2009

SZLLC

First Applicant

SZLLD

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 6 February 2009, in which the applicants seek relief under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal handed down on 6 September 2007. The Tribunal affirmed a decision made by a delegate on 6 July 2007, refusing to grant protection visas to the applicants.

2. The validity of the Tribunal’s decision has already been upheld in litigation under the same jurisdiction.  Cameron FM dismissed the application on 27 March 2008 (see SZLLC & Anor v Minister for Immigration & Anor [2008] FMCA 402). His Honour held that no jurisdictional error had been proven.

3. The applicants sought leave to appeal to the Federal Court, but did not attend the hearing, and their application was dismissed by Edmonds J on 12 August 2008 under s.25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

4. The applicants have now started a second proceeding in this Court.  Their application contains grounds taken from a precedent frequently seen in this Court, which lack any particulars allowing them to be meaningfully applied to the Tribunal’s decision.  It therefore does not raise an arguable case for the relief claimed.  Moreover, prima facie, it faces insuperable obstacles under principles of res judicata or Anshun estoppel arising by reason of the previous litigation. 

5. The application is listed today for a first court date, but neither of the applicants have appeared.  The listing appointed by the Registry was clearly inserted in the application.  

6. The Minister filed and served an application in a case, which was also returnable today. It seeks the summary dismissal of the proceeding upon several bases, including under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), and also on the ground that it is an abuse of process. I am satisfied that this application was served on the applicants at their stated residential and postal addresses, in time for it to have been received prior to today’s listing. The covering letter warned the applicants that the Minister might seek to have the matter dismissed if they did not attend.

7. The Minister submits that I should proceed with a show‑cause hearing in the absence of the applicants, pursuant to r.13.03C(1)(e). I consider that it is appropriate to do so, in the circumstances of this case.

8. As I have indicated, the originating application lacks merit, and also appears to be an abuse of process. I consider it is appropriate to dismiss it summarily under r.44.12 today, notwithstanding the absence of the applicants. If they have arguments to explain their absence today, and to show merit in their substantive application, then they can apply to set aside my orders under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).

9. In the circumstances of the history of the matter, and the nature of the documents relied on by the applicants, I consider it appropriate to direct the Registry of this Court not to receive any other species of application relating to the applicants’ protection visa applications, without first getting the leave of the Court. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  12 March 2009