SZLMI v Minister for Immigration

[2009] FMCA 243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLMI v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 243

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause application incompetent.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477

SZLMI v Minister for Immigration & Anor [2008] FMCA 639
SZLMI v Minister for Immigration and Citizenship [2008] FCA 1232
SZLMI v Minister for Immigration & Anor [2009] HCASL 9

Applicant: SZLMI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 500 of 2009

Judgment of: Driver FM

Hearing date: 25 March 2009

Delivered at: Sydney

Delivered on: 25 March 2009

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms B Anniwell
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).

2. The application is dismissed as incompetent.

3. No further application by this applicant to review any decision under the Migration Act 1958 relating to his protection visa application made on 10 April 2007, including but not limited to the decision of the Refugee Review Tribunal made on 20 September 2007 and signed on 28 September 2007, be accepted for filing in this Court, except by leave of a Federal Magistrate.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,600.

5. The Minister is to arrange to have the orders made today entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 500 of 2009

SZLMI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 4 March 2009 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made orally on 20 September 2007.  The decision records that the written reasons were sent to the applicant on 28 September 2007.  The Tribunal affirmed a decision of a delegate of the Minister to grant to the applicant a protection visa.

2. The applicant is from India and arrived in Australia on 10 April 2007.  He applied to the Minister's Department for a protection visa on 19 April 2007.  The delegate refused that application on 31 May 2007 and notified the decision the same day.  The applicant applied to the Tribunal on 27 June 2007 for review of the delegate's decision.  The applicant appeared before the Tribunal on 20 September 2007 to give evidence and present argument.  The hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.

3. The Tribunal, in its decision, considered the applicant's claims, which essentially related to a family dispute centred upon his asserted relationship with a girl.  The claims were considered as a claim of persecution based on religion and political opinion.  The Tribunal found that the applicant gave confusing and conflicting evidence at the hearing conducted by the Tribunal in relation to certain key aspects of his claims.  The Tribunal was unimpressed with the consistency of the applicant's claims about the harm threatened against him by his girlfriend's family.  The Tribunal found the applicant to be an unreliable witness.  The Tribunal further found that, in any event, his evidence did not support the view that his girlfriend's family's reaction to the asserted relationship amounted to Convention related harm. 

4. The Minister responded to the application on 19 March 2009. The Minister contends that the application is out of time having regard to s.477 of the Migration Act 1958 (Cth) and also notes other judicial review proceedings in relation to the same Tribunal decision. I incorporate in this judgment the grounds in that response:

   1. That the Court lacks jurisdiction to hear the application [Rule 44.06(2)(a)].

   Particulars

   a)      The application is out of time:

   i) The decision of the second respondent (“the Tribunal”) was given orally at a hearing before the Tribunal on 20 September 2007.

   ii) The applicant received actual notification of the Tribunal’s decision on 28 September 2007 (see affidavit of Brin Ellen May Anniwell, affirmed 19 March 2009, pages 13 and 22; application filed in the proceedings on 4 March 2009, page 2).

   iii) Contrary to s.477(1) of the Migration Act 1958 (“the Act”), the application to the Federal Magistrates Court was not made within 28 days of the actual notification of the decision.

   iv) An application for an order that the Federal Magistrates Court extend the 28 day period by up to 56 days as provided by s.477(2)(a) of the Act was not made within 84 days of the actual notification of the decision.

   2. There have been other judicial review proceedings in relation to the decision of the Tribunal dated 20 September 2008 [Rule 44.06(2)(c)].

   Particulars

   a) The applicant, a citizen of India, arrived in Australia … on 10 April 2007 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 19 April 2007.

   b) On 31 May 2007, a delegate of the first respondent gave a decision refusing the application for the protection visa.

   c) On 27 June 2007, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

   d) By a decision dated 20 September 2007 and signed on 28 September 2007, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (“the Tribunal’s decision”).

   e) On 15 October 2007, the applicant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court of Australia, Sydney Registry (proceedings number SYG3186 of 2007).  The applicant filed an amended application at the hearing of the proceedings before Nicholls FM on 6 May 2008.

   f)On 6 May 2008, the application made on 15 October 2007 and amended on 6 May 2008, was dismissed with costs by Nicholls FM (SZLMI v Minister for Immigration & Anor [2008] FMCA 639).

   g)On 23 May 2008 the applicant filed a Notice of Appeal in the Federal Court of Australia, NSW District Registry (proceedings number NSD 742 of 2008).  The appeal was dismissed with costs by Marshall J on 13 August 2008.  … (SZLMI V Minister for Immigration and Multicultural Affairs [2008] FCA 1232).

   h)On 8 September 2008, the applicant filed an Application for Special Leave to Appeal in the High Court of Australia, Sydney Registry (proceedings number S406 of 2008).  The application was dismissed by Gummow and Kiefel JJ on 11 February 2009. 

   i) The present application, filed in the Federal Magistrates Court of Australia on 4 March 2009, seeks review of the same Tribunal decision dated 20 September 2008.

   3. The application is an abuse of the Court’s process [Rule 13.10(c)]:

   Particulars:

   a)      See paragraphs 2(a) to (i) above.

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

5. I have before me as evidence the applicant's affidavit filed with the show cause application to the extent that it makes relevant assertions of fact and also an affidavit by Brin Ellen May Anniwell detailing the background to this matter and the earlier judicial review proceedings.  I also have before me as an exhibit[1], correspondence dated 12 and 19 March 2009 from the Minister's solicitors to the applicant at his address for service reminding him of the hearing of this matter at 9.30am today and of the possibility that there might be an immediate show cause hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).

   [1] exhibit R1

6. When the matter was called this morning at 9.58am and 10.00am there was no appearance by or on behalf of the applicant.  The Court was successful in contacting the applicant on a mobile telephone number he had provided in his application.  The Court was assisted by an interpreter in the Malayalam and English languages.  The applicant stated that he was not at Court because he was sick.  It was apparent that he was speaking from an out of doors location and I questioned him as to his whereabouts.  He said that he was going to see his doctor because of an asserted back condition.  He identified the name of the doctor at a health centre in Dee Why and said that his appointment was at 12.30pm.  I expressed some surprise as the time was then shortly after 10.00am.  The applicant stated that there would be a long wait to see the doctor.  I informed the applicant that, if he was able to obtain from his doctor an opinion that he was unfit to attend Court today and to fax that through to the Court on a facsimile number I provided to him orally, I would consider that material, but that if he was unable to obtain such an opinion I would expect him to attend Court at 2.15pm today.

7. Nothing has been received.  The applicant has not appeared this afternoon when the matter was called at 2.26pm and an attempt to contact him on the same mobile telephone number was unsuccessful.  I have in the circumstances decided to proceed in the applicant's absence on the basis of an immediate show cause hearing.

8. The applicant asserts in his application that he was notified of the Tribunal decision on 28 September 2007.  That same assertion was made in earlier judicial review proceedings detailed in the affidavit of Ms Anniwell.  I have no reason to believe that the assertion is untrue.  I infer that the applicant was actually notified of the Tribunal decision on or about the date he asserts.  It would follow from that that the present application is incompetent as more than 84 days had elapsed since that notification.  Indeed, about 18 months have elapsed. 

9. Even if the asserted date of notification is unreliable, having regard to the earlier judicial review proceedings in which the Tribunal decision was in evidence, the applicant must have actually received the Tribunal decision prior to him challenging that decision in this Court in the first instance.  In that regard I incorporate in this judgment paragraphs 7 to 10 of Ms Anniwell's affidavit:

   On 15 October 2007, the applicant filed an application for judicial review of the Tribunal's decision in the Federal Magistrates Court of Australia, Sydney Registry (proceedings number SYG 3186 of 2007).  The applicant filed an amended application at the hearing of the proceedings before Nicholls FM on 6 May 2008.  …

   On 6 May 2008, the application made on 15 October 2007 and amended on 6 May 2008, was dismissed with costs by Nicholls FM.  …

   On 23 May 2008 the applicant filed a Notice of Appeal in the Federal Court of Australia, NSW District Registry (proceedings number NSD 742 of 2008).  The appeal was dismissed with costs by Marshall J on 13 August 2008.  …

   On 8 September 2008, the applicant filed an Application for Special Leave to Appeal in the High Court of Australia, Sydney Registry (proceedings number S406 of 2008).  The application was dismissed by Gummow and Kiefel JJ on 11 February 2009.  …

10. I find that the decision of the Tribunal was actually notified to the applicant no later than 15 October 2007 and that the show cause application before the Court is incompetent. 

11. I note that the Tribunal's decision was dealt with in this Court by Nicholls FM in SMLMI v Minister for Immigration & Anor [2008] FMCA 639. At [60] of his reasons his Honour stated that he could not discern jurisdictional error by way of any of the complaints put forward by the applicant in those proceedings. Nor could his Honour see that the Tribunal's decision was affected by jurisdictional error either by way of those complaints or indeed otherwise. For that reason his Honour dismissed the application.

12. His Honour's judgment was upheld on appeal in the Federal Court: SZLMI v Minister for Immigration and Citizenship [2008] FCA 1232. At [7] of that judgment Marshall J found that Nicholls FM committed no appealable error in upholding the Tribunal's decision. The applicant sought special leave to appeal from the High Court, which was refused. In refusing special leave Gummow and Keifel JJ stated at [5] of the special leave transcript[2] that the applicant had not advanced any question of law that would justify the grant of special leave to appeal.  The Tribunal's decision was open to it and there was no reason to doubt the correctness of the decisions of the Courts below.

    [2] SZLMI v Minister for Immigration & Anor [2009] HCASL 9

13. I conclude that the issue of whether the Tribunal decision is free from jurisdictional error has already been conclusively determined.  It follows that the Tribunal decision has previously been found to be a privative clause decision and this Court has no further jurisdiction to entertain the present application.  It is unnecessary to deal with the other grounds of opposition to the application other than to note that the repeated bringing of proceedings in this Court in circumstances where the relevant decision has already been finally dealt with is an abuse of process.

14. The Minister seeks an order that the applicant be prevented from filing further applications to deal with the Tribunal decision except by leave. I agree that such an order is appropriate. The present application is an abuse of this Court's process and the applicant's conduct in the pursuit of it suggests that it is also vexatious. I will order that no further application by this applicant to review any decision under the Migration Act relating to his protection visa application made on 10 April 2007, including but not limited to the decision of the Refugee Review Tribunal made on 20 September 2007 and signed on 28 September 2007, be accepted for filing in this Court, except by leave of a Federal Magistrate.

15. The applicant should pay costs of the present application on an indemnity basis.  Those costs have been estimated by the Minister's solicitor at $1,600 and I accept that estimate.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,600.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  30 March 2009