SZMFC v Minister for Immigration
[2008] FMCA 768
•4 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 768 |
| MIGRATION – Application for summary dismissal – where application does not refer to Tribunal’s decision. |
| SZBRB v Minister for Immigration & Anor [2007] FMCA 1093 SZBRB v Minister for Immigration [2007] FCA 1452 SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 |
| Applicant: | SZMFC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1100 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 June 2008 |
| Date of last submission: | 4 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2008 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Respondent to the application (the substantive applicant) to pay the applicant to the application’s costs assessed in the sum of $1,250.00.
The substantive applicant be prohibited from lodging any application to review any decision under the Migration Act 1958 relating to his protection visa application made on 28 September 2004, the decision of the delegate on that application, or any decision of the Refugee Review Tribunal relating to the delegate’s decision or any notification of such decisions without the leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1100 of 2008
| SZMFC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There comes before me today an application by the respondent Minister to summarily dismiss an application made for review of a decision of the Refugee Review Tribunal made on 17 April 2008.
The decision which was made by the Tribunal on that date noted:
“The applicant has previously lodged an application for review of the delegate’s decision of 12 October 2004. The Tribunal accepted that application and conducted a review. The Tribunal has therefore already discharged its functions under s.414 to review the decision. As mentioned earlier, the applicant has unsuccessfully sought judicial review of the Tribunal’s decision.
As the delegate’s decision of 12 October 2004 has already been the subject of a valid review by the Tribunal, it is no longer an RRT reviewable decision under s.411. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.”
In his application to the court filed on 30 April 2008 the applicant states that the grounds upon which he seeks relief are:
“(1) Constructive failure of jurisdiction going to satisfaction, misconception of duty.
Particulars:
(a) The delegate held that the applicant could avail himself of protection in his country.
(b) The delegate found that it would not be unreasonable for the applicant to do so.
(c) It was not open for the delegate to satisfy itself that it would be reasonable for the applicant to relocate.”
It will immediately be seen there is no reference to the decision of the Refugee Review Tribunal that I have previously extracted.
The applicant Minister argues, correctly in my view, that this application is an abuse of the processes of this court. He argues that it is frivolous and that, in any event, it has no prospects of success. If the applicant wishes to raise his opposition to the grounds upon which his protection visa was originally refused by the delegate then he is no longer able to do so because those matters have been the subject of a merits review and reviewed by all three courts in the Commonwealth jurisdiction. The matters are simply res judicata.
If the applicant wished to seek review of the decision of the Tribunal in concluding that it was functus he has not done so. The court should not presume that he should wish to do so if he had had the opportunity. However, I am satisfied that the Tribunal correctly stated the law as to its position; SZBRB v Minister for Immigration & Anor [2007] FMCA 1093 at [30]; SZBRB v Minister for Immigration [2007] FCA 1452 at [21] and SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164. Therefore, the application has no prospects of success and should not be allowed to continue. I dismiss the application. I order the respondent to the application (the substantive applicant) to pay the applicant to the application’s costs assessed in the sum of $1,250.00.
The Minister seeks a further order preventing this applicant from making any more applications in relation to his application for a protection visa. I believe this is an appropriate case in which such a prohibition should be granted. The substantive applicant shall be prohibited from lodging any application to review any decision under the Migration Act 1958 relating to his protection visa application made on 28 September 2004, the decision of the delegate on that application, or any decision of the Refugee Review Tribunal relating to the delegate’s decision or any notification of such decisions without the leave of a Federal Magistrate.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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