SZLUI v Minister for Immigration

[2009] FMCA 277

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 277

MIGRATION – RRT decision – previous unsuccessful application for judicial review and appeals – use of abusive documents – no arguable case for relief – applicants absent from first court date – adjournment refused – application summarily dismissed.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1)(e), 16.05(2)(a), 44.12(1)(a)
Migration Act 1958 (Cth), s.476

SZLUI & Anor v Minister for Immigration & Citizenship & Anor [2009] HCASL 12
SZLUI v Minister for Immigration & Citizenship [2008] FCA 1318
SZLUI & Anor v Minister for Immigration & Anor [2008] FMCA 843

First Applicant: SZLUI

Second Applicant: SZLUJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 524 of 2009

Judgment of: Smith FM

Hearing date: 24 March 2009

Delivered at: Sydney

Delivered on: 24 March 2009

REPRESENTATION

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

Counsel for the First Respondent: Ms M Palmer

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 applicants must pay the first respondent’s costs in the sum of $1,000. 

3. Direct that no further application for review of the decision of the Refugee Review Tribunal dated 30 October 2007 reference 071514985, or for review of the decision of the delegate of the first respondent dated 28 May 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 11 May 2007, shall be accepted for filing without prior leave of the Court. 

4. Order 3 does not apply in relation to any application under r.16.05(2)(a) in respect of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 524 of 2009

SZLUI

First Applicant

SZLUJ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This application was filed on 5 March 2009, seeking judicial review under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 30 October 2007. The Tribunal affirmed a decision of a delegate which refused to grant protection visas to the applicants. The Tribunal arrived at the conclusion that the applicants had not left India fearing Convention‑related persecution.

2. The validity of the Tribunal’s decision has been upheld in previous litigation invoking the same jurisdiction of this Court.  Lloyd‑Jones FM dismissed an application on 6 June 2008 (see SZLUI & Anor v Minister for Immigration & Anor [2008] FMCA 843). His Honour was unable to identify any jurisdictional error affecting the Tribunal’s decision.

3. The applicants appealed, and their appeal was dismissed by Rares J on 20 August 2008 (see SZLUI v Minister for Immigration & Citizenship [2008] FCA 1318). His Honour noted that the documents filed by the applicants were of a “boilerplate” form, and were totally lacking in merit.  His Honour characterised the appeal as an abuse of process “because they are foredoomed to fail” (see [16]).

4. The applicants then applied for special leave to appeal to the High Court, and leave was refused by Gummow and Kiefel JJ on 11 February 2009 (see SZLUI & Anor v Minister for Immigration & Citizenship & Anor [2009] HCASL 12). Their Honours also noted that “the applicants’ draft notice of appeal and written case again are of a template variety and do not properly address the decision of Rares J”. 

5. The present application appears prima facie to be a further attempt to protract the period of the applicants’ lawful residence in Australia by the continuance of hopeless litigation. I draw this inference not only from the chronology, but because again from the form of their application. It adopts a precedent having no particulars, and its grounds have no apparent bearing on the actual decision of the Tribunal. I consider that it can be characterised both as an abuse of process, and also as not raising an arguable case for the relief claimed.  In the latter respect, as well as the lack of apparent merit in the formulation of its grounds, it faces insuperable difficulties arising under res judicata or Anshun estoppel arising from the previous litigation.

6. The application was marked by the Registry, and presumably was thus returned to the applicants, showing a first court date today.  There is also confirmation that the applicants are aware of today’s listing, as I shall describe. 

7. I would also find that they are aware of a letter sent by the solicitors for the Minister, informing the applicants that the Minister would be moving on his response, which challenges the Court’s jurisdiction and also invites summary dismissal of the application on the grounds of abuse of process, estoppel, and the absence of an arguable case.  The solicitor’s letter clearly notified the applicants that the Minister would be seeking that the application be dismissed today for the reasons outlined in the response. 

8. My confidence that the applicants are aware of the listing today, and of the Minister’s intention to seek summary dismissal, arises from a facsimile letter sent to the Court yesterday on a letterhead from a facsimile machine at “Suleyman Harvesting” in Western Australia.  The letter says: 

   With reference your letter for my hearing on [illegible] 24/3/09 but I cannot attend my hearing because I was coming in Western Australia for work but I cannot get work and my financial position is weak. Western Australia is so far from Sydney.

   If you have any quarrel you call me on my mobile no. [number]. 

   Thanking you. 

9. The letter does not actually seek an adjournment nor oppose the Minister’s application for summary dismissal, although both desires might be implicit. Assuming that the applicants are making an application for an adjournment and also oppose the immediate dismissal of the proceeding, I am unpersuaded that I should accede to their submission.  In my opinion, if the applicants are truly concerned to present an argument of merit to the Court to justify the present litigation, they should have attended the Court to explain their arguments.

10. I consider it appropriate to proceed with the Minister’s application in the absence of the applicants pursuant to r.13.03C(1)(e), and to dismiss the application today under r.44.12(1)(a). It will be open to the applicants to apply to the Court under r.16.05(2)(a) to set aside today’s orders, but they will need to move promptly, to justify their absence today, and to point to arguments showing merit in their original application which justifies its restoration to the list.

11. Due to the litigation history which I have recited above, and the propensity of these applicants to protract litigation through the use of abusive precedents and other tactics, I consider it appropriate to direct the Registry not to accept any other species of application relating to their protection visa applications without prior leave of the Court. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  3 April 2009