SZLTA v Minister for Immigration
[2009] FMCA 366
•27 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLTA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 366 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as incompetent – Tribunal decision previously found to be a privative clause decision. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.474, 477 |
| SZLNN v Minister for Immigration & Anor [2009] FMCA 350 SZLTA v Minister for Immigration & Anor [2008] FMCA 667 SZLTA v Minister for Immigration & Anor [2008] FCA 1356 SZLTA v Minister for Immigration & Anor [2009] HCASL 28 |
| First Applicant: | SZLTA |
| Second Applicant: | SZLTB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 708 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 27 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2009 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing, pursuant to rule 44.11 of the Federal Magistrates Court Rules 2001 (Cth).
The application filed on 25 March 2009 is dismissed as incompetent.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,175 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
No further application by these applicants to review any migration decision relating to their protection visa application lodged on 11 May 2007 including, but not limited to, the decision of the Refugee Review Tribunal handed down on 20 November 2007 be accepted for filing in this Court, except by leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 708 of 2009
| SZLTA |
First Applicant
SZLTB
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 25 March 2009. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 20 November 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The application asserts notification of the Tribunal decision on 20 November 2007.
The application is opposed by the Minister. I incorporate in this judgment the grounds of the Minister's response filed on 2 April 2009, set out in paragraphs 1 through to 3.5 of that response:
The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal [signed on] 30 October 2007.
The application for review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.
There have been other judicial review proceedings in relation to the decision that is the subject of the current proceedings. Previous applications have been dismissed and the judgments are available at SZLTA v Minister for Immigration & Anor [2008] FMCA 667; SZLTA v Minister for Immigration & Anor [2008] FCA 1356; and SZLTA v Minister for Immigration & Anor [2009] HCASL 28. Accordingly:
· The applicant is estopped from bringing the current proceedings on the basis of res judicata and issue estoppel.
· The doctrine of Anshun estoppel applies and there are no special circumstances to justify its non application.
· Pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules the applicant has no reasonable prospect of successfully prosecuting the proceeding.
· Pursuant to Part 13 Rule 13.10(b) of the Federal Magistrates Court Rules the proceeding is frivolous or vexatious.
· Pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules the proceedings are an abuse of process.
The application is supported by short affidavit by the applicant. I received paragraph 1 of the affidavit as evidence and paragraph 2 as a submission. The response is supported by the affidavit of Bernadette Marie Rayment made on 2 April 2009. That affidavit I also received and establishes the facts concerning the applicants litigation history asserted in the Minister's response. I incorporate (with a minor amendment) in this judgment the chronology forming annexure A to the affidavit:
BACKGROUND
Applicant born in Bangladesh 30 September 1982
Applicant arrived in Australia 28 March 2007
DIMA
Application for protection visa lodged 11 May 2007
Delegate’s decision 28 May 2007
REFUGEE REVIEW TRIBUNAL
Application for review lodged 20 June 2007
Tribunal decision 20 November 2007
FEDERAL MAGISTRATES COURT – SYG3792 OF 2007
Application for judicial review lodged 10 December 2007
Judgment and orders of Orchiston FM
dismissing application 28 May 2008
FEDERAL COURT – NSD892 OF 2008
Notice of appeal lodged 17 June 2008
Judgment and orders of North J dismissing appeal 19 August 2008
HIGH COURT – S430 OF 2008
Application for special leave to appeal lodged 15 September 2008
Orders of French CJ and Hayne J
dismissing application 3 March 2009
FEDERAL MAGISTRATES COURT – SYG708 2009
Application for judicial review lodged 25 March 2009
I also received as an exhibit[1] a letter dated 3 April 2009 from the Minister's solicitors to the principal applicant at his address for service. That letter enclosed the Minister's response and the affidavit of Ms Rayment. That letter also put the applicant on notice that the Minister would, at the first Court date hearing this morning, seek an immediate show cause hearing.
[1] Exhibit R1
The principal applicant did not appear when this matter was called at 9.55am. The Court was, however, successful in contacting him by telephone. He claimed to have been ill for about three days with flu like symptoms. He also claimed that the weather in Victoria, where he is currently located, has been poor for about a week. Neither the Court nor the Minister's solicitors have received any prior notice of an inability by the applicant to attend today's hearing. The applicant agreed that he was well enough to attend by telephone and consented to a telephone hearing. He acknowledged receipt of the letter dated 3 April 2009 and the documents enclosed with it. I proceeded with a show cause hearing. I explained to the applicant the issues arising from the Minister's response and invited his oral submissions. He did not want to make any. Having heard Ms Palmer, for the Minister, I invited submissions in reply from the applicant. Again, he had nothing to say.
I accept that the application before the Court was filed within time. Under transitional provisions related to amendments to the Migration Act 1958 (Cth) (“the Migration Act”), including to s.477, which took effect on 15 March 2009, the decision of the Tribunal is taken to have been made on that date[2]. It follows that the application filed on 25 March 2009 was clearly filed within time. However, in my view, the Court has no jurisdiction in this matter having regard to the terms of s.474 of the Migration Act.
[2] SZLNN v Minister for Immigration & Anor [2009] FMCA 350 at [5]
The Tribunal decision in issue was previously reviewed by this Court in 2008. Orchiston FM dealt with that review in SZLTA & Anor v Minister for Immigration & Anor [2008] FMCA 667. Her Honour considered the various grounds raised by the applicants on that occasion and rejected all of them. At [78] of her judgment, her Honour concluded:
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
Her Honour's decision is not binding on me. However, the Court should not lightly depart from a decision of the Court, especially an earlier decision in respect of the same decision. In my view, there is no reason for the Court to depart from her Honour's conclusion concerning the operation of s.474.
The applicants appealed unsuccessfully against the decision of Orchiston FM[3]. His Honour, North J, considered the earlier decision of this Court and found no error in it. At [15], his Honour expressly agreed with the reasoning of Orchiston FM, at [75] to [77] of her reasons. While his Honour did not expressly adopt the conclusion of Orchiston FM at [78], the effect of his judgment is, in my view, to affirm that conclusion. Further, the High Court refused special leave on 3 March 2009[4]. In refusing special leave at [2] of the High Court transcript, their Honours French and Hayne JJ said that the decisions in the Courts below are not attended by doubt.
[3] SZLTA & Anor & Minister for Immigration [2008] FCA 1356
[4] SZLTA v Minister for Immigration & Anor [2009] HCASL 28
I conclude that the effect of these judgments is to affirm conclusively that the decision of the Tribunal at issue is a privative clause decision. Accordingly, this Court has no jurisdiction to entertain the present application. I so find.
Even if I were wrong in that finding, it is plain from the application that the applicant has nothing new to argue in relation to the Tribunal decision. The application essentially rehearses issues previously raised in the earlier proceedings. I accept that if the Court did have jurisdiction the application should be summarily dismissed in accordance with the principle of res judicata. Further, the repeated bringing of applications to reagitate issues already dealt with by the courts in relation to a migration decision is an abuse of this Court's process. The Minister should not be continually vexed by applications of this nature. I will order that the application filed on 25 March 2009 is dismissed as incompetent.
In consequence of the dismissal of the application, the Minister seeks scale costs of $1,175. The Minister's actual costs would be in the vicinity of $1,500. The solicitor for the Minister was not instructed to seek indemnity costs. The applicant expressed an intention to seek to pay whatever costs might be awarded by instalments. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,175 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
Further, an abuse of process having been found, it is appropriate to prevent further such applications being filed in the Court except by leave. I will order that no further application by these applicants to review any migration decision relating to their protection visa application lodged on 11 May 2007 including, but not limited to, the decision of the Refugee Review Tribunal handed down on 20 November 2007 be accepted for filing in this Court, except by leave of a Federal Magistrate.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 29 April 2009
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