SZLSK v Minister for Immigration

[2008] FMCA 1478

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLSK v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1478

MIGRATION – RRT decision – second 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)

SZLSK v Minister for Immigration [2008] FMCA 295
SZLSK v Minister for Immigration & Citizenship [2008] FCA 797
SZLSK v Minister for Immigration & Citizenship [2008] HCASL 483

Applicant: SZLSK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2377 of 2008

Judgment of: Smith FM

Hearing date: 21 October 2008

Delivered at: Sydney

Delivered on: 21 October 2008

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms K Whittmore

Solicitors for the Respondents: Sparke Helmore

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 applicant must pay the first respondent’s costs in the sum of $1,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2377 of 2008

SZLSK

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 12 September 2008, which seeks judicial review under s.476 of the Migration Act in respect of a decision of the Refugee Review Tribunal dated 19 October 2007 and handed down on 8 November 2007. The Tribunal affirmed the decision of a delegate, which refused to grant a protection visa to the applicant.

2. The Tribunal considered the applicant's evidence that he feared persecution in India by his creditors.  It could find no suggestion in his evidence of a Convention reason for his persecution, nor any suggestion that the authorities failed to protect the applicant for one or more of the five Convention reasons.

3. The applicant has already challenged the validity of the Tribunal's decision unsuccessfully.  Emmett FM dismissed an application on 11 March 2008 (see SZLSK v Minister for Immigration [2008] FMCA 295). Jessup J dismissed an appeal on 19 May 2008 (see SZLSK v Minister for Immigration & Citizenship [2008] FCA 797). Gummow and Keifel JJ refused special leave to appeal to the High Court on

   
   28 August 2008

   (see SZLSK v Minister for Immigration & Citizenship [2008] HCASL 483). They said: “There is no reason to doubt the decision of the Federal Court”.

4. The applicant’s present application presents no arguable ground for showing any jurisdictional error in the Tribunal's decision. More significantly, the application faces insuperable difficulties under principles of res judicata or Anshun estoppel. It is probably also an abuse of process.

5. The applicant today had no argument to justify commencing a second round of litigation.  He made a submission, which had previously been made to Emmett FM and Jessup J, that he wanted more time to present documents.  However, as Jessup J pointed out:

   His problem was not that the Tribunal did not believe him or that an otherwise potentially unmeritorious case lacked evidence; rather, his problem was that his case had no merit at all under the Refugee's Convention, however strong it might have been in an evidentiary sense.

6. In my opinion, it is appropriate for the application to be dismissed today under r.44.12(1)(a) of the Federal Magistrates Court Rules on the ground that it does not raise an arguable case for the relief it claims.

7. The applicant needs to appreciate that there must be an end to his litigation concerning his protection visa application.  Any further attempt to litigate in this Court will be met by further prompt orders from the Court.

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

Associate:  Michael Abood

Date:  28 October 2008