SZLNN v Minister for Immigration

[2009] FMCA 350

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLNN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 350

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – Tribunal decision previously reviewed by the Court – second application an abuse of process.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.474, 477
Migration Legislation Amendment Act (No.1) 2009

SZLNN v Minister for Immigration & Anor [2008] FMCA 744
SZLNN v Minister for Immigration [2008] FCA 1462
SZLNN v Minister for Immigration & Anor [2009] HCASL 43

Applicant: SZLNN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 729 of 2009

Judgment of: Driver FM

Hearing date: 23 April 2009

Delivered at: Sydney

Delivered on: 23 April 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Griffin
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. There be an immediate show cause hearing, pursuant to rule 44.11 of the Federal Magistrates Court Rules 2001 (Cth).

2. The application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $900.

4. No further application by this applicant to review any migration decision relating to his protection visa application made on 21 March 2007 including, but not limited to, the decision of the Refugee Review Tribunal handed down on 27 September 2007 be accepted for filing in this Court, except by leave of a Federal Magistrate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 729 of 2009

SZLNN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me an application filed on 27 March 2009 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 27 September 2007.  The application asserts notification of the decision on the same day.  The application is supported by a short affidavit by the applicant.  In that affidavit the applicant identifies himself and asserts jurisdictional error in the Tribunal decision.

2. The application is opposed by the Minister.  I incorporate in this judgment the grounds of the Minister's response filed on 16 April 2009:

   1.There have been other judicial review proceedings in relation to the decision of the Tribunal dated 23 October 2007 and handed down on 27 November 2007 [Rule 44.06(2)(c) [of the Federal Magistrates Court Rules 2001 (Cth)].

   Particulars

   a)The applicant, a citizen of India, arrived in Australia on 26 February 2007 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 21 March 2007.

   b)On 4 April 2007, a delegate of the first respondent gave a decision refusing the application for the protection visa.

   c)On 27 April 2007, the applicant lodged an application for review of the delegate’s decision with the second respondent (“the Tribunal”). 

   d)By a decision signed on 5 September 2007 and handed down on 27 September 2007, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (“the Tribunal's decision”).

   e)On 22 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 3266 of 2007).  The applicant filed an amended application on 10 March 2008.

   f)On 2 June 2008, the application was dismissed with costs by Raphael FM:  SZLNN v Minister for Immigration & Anor [2008] FMCA 744.

   g)On 19 June 2008, the applicant filed a Notice of Appeal in the Federal Court of Australia, NSW District Registry (proceedings number NSD 909 of 2008).  The appeal was dismissed with costs by Reeves J on 26 September 2008:  SZLNN v Minister for Immigration and Citizenship [2008] FCA 1462.

   h)On 21 October 2008, the applicant filed an Application for Special Leave to Appeal in the High Court of Australia, Sydney Registry (proceedings number S476 of 2008).  The application was dismissed by French CJ and Hayne J on 3 March 2009:  SZLNN v Minister for Immigration and Citizenship & Anor [2009] HCASL 43.

   i)The present application, filed in the Federal Magistrates Court of Australia, Sydney Registry, on 27 March 2009 (proceedings number SYG 729 of 2009), seeks further judicial review of the Tribunal's decision handed down on 27 September 2007.

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

   Particulars:

   a)     See paragraphs 1(a) to (i) above.

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

3. That response is supported by the affidavit of Brin Ellen May Anniwell made on 16 April 2009. I received that affidavit. I accept her evidence. Paragraph 3 through to paragraph 11 of that affidavit essentially repeats the material facts reproduced at [2] above.

4. I ordered an immediate show cause hearing in this matter when it came before me this morning pursuant to rule 44.11 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

5. In cases like the present there has in the past often been a jurisdictional objection to the Court dealing with a second application to review the same Tribunal decision. That jurisdictional objection has been based on either s.477 or s.474 of the Migration Act 1958 (Cth) or both. In the present case there is no jurisdictional objection based upon s.477. That section was amended with effect from 15 March 2009[1].  Transitional provisions related to the amendments relevantly provide that a Tribunal decision made before the amendments is taken to have been made on the date of commencement of the amendments[2]. It follows that the present Tribunal decision is taken to have been made on 15 March 2009.  The applicant then had 35 days to file the present application.  The application was filed well within that period. 

   [1] Migration Legislation Amendment Act (No 1) 2009, proclamation by Governor-General, signed 13 March 2009

   [2] Migration Legislation Amendment Act (No 1) 2009, Schedule 2, item 7(2)

6. It might have been arguable that the Court had no jurisdiction in this case on the basis that the Tribunal decision is a privative clause decision having regard to the earlier legal proceedings relating to that provision. However, the earlier decision of this Court and the decisions on appeal by the Federal Court and the High Court did not expressly make a finding that the Tribunal decision is a privative clause decision.

7. In the circumstances, I am unwilling to conclude that this Court would have no jurisdiction to entertain some new allegation of jurisdictional error that had not been dealt with in earlier legal proceedings. The Minister's response is based, rather, on the proposition that the present application is an abuse of the Court's process and is doomed to fail in any event. 

8. I invited submissions from the applicant on those propositions but he simply relied upon the material that he has filed.

9. The present application contains three grounds which I incorporate in this judgment:

   1. It is clearly evident that [t]he Refugee Review Tribunal has not attended any evidence in relation to my claims and thus its decision influenced by sufficient doubts.  I provided a suitable vehicle and most of the grounds relied upon facts and documents which and documents which the Tribunal did not consider.  The RRT heavily depended in their handling of the issues based on the generalised facts and independent information.

   2. The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

   3. The Tribunal member failed to consider all the material readily available and/or accessible and [the] Member continued an erroneous approach to my claims and failed to address my mind to the material questions arising out of those material.

10. In addition, the supporting affidavit asserts a constructive failure to exercise jurisdiction and procedural unfairness in general terms. 

11. In the earlier proceedings in this Court the applicant relied upon an amended application filed on 10 March 2008. That amended application contained nine grounds. Ground 2 in the present application is the same as ground 2 in the earlier amended application. Ground 1 in the present application is very similar to grounds 3 and 4 in the earlier amended application. Ground 3 in the present application has some parallel with grounds 4 and 9 in the earlier amended application.  Further, while ground 3 in the present application asserts, in effect, that something was overlooked by the Tribunal there are no particulars to throw light upon that ground. The affidavit asserts procedural unfairness but the same allegation was made in the earlier proceedings in this Court. I am also satisfied that there is no issue of a constructive failure to exercise jurisdiction that has not already been dealt with in the earlier legal proceedings.

12. The repeated bringing of applications in this Court in circumstances where the relevant migration decision has already been dealt with by the Court and nothing new of substance is raised is an abuse of this Court's process. I am satisfied that the present application is an abuse of process.

13. In addition, I am also satisfied that there is no prospect of the present application succeeding.

14. I will order that the application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.

15. The application having been dismissed on the basis of an abuse of process having been found, the Minister is entitled to seek an award of costs on an indemnity basis. The Minister's actual costs are in the vicinity of $1,100. The solicitor for the Minister had instructions to only seek a lesser amount of $900. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $900.

16. I should also deal with the possibility that the applicant might seek to file further proceedings in this Court in relation to the same Tribunal decision.  An abuse of process having been found, the leave of the Court should be required before such an application is accepted by the Court Registry.  I will order that no further application by this applicant to review any migration decision relating to his protection visa application made on 21 March 2007 including, but not limited to, the decision of the Refugee Review Tribunal handed down on 27 September 2007, be accepted for filing in this Court, except by leave of a Federal Magistrate.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  28 April 2009