SZMNQ v Minister for Immigration

[2008] FMCA 1313

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMNQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1313

MIGRATION – Persecution – review of Refugee Review Tribunal decision – non-attendance – no arguable case – application dismissed.

Federal Magistrates Court Rules 2001, rr.13.03A, 44.12

SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175
SZDMO v Minister for Immigration & Multicultural Affairs [2006] FCA 989 SZASP v Minister for Immigration & Citizenship [2007] FCA 771

First Applicant: SZMNQ

Second Applicant: SZMNR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1840 of 2008

Judgment of: Cameron FM

Hearing date: 21 August 2008

Date of Last Submission: 21 August 2008

Delivered at: Sydney

Delivered on: 21 August 2008

REPRESENTATION

No appearance by the Applicants.

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Pursuant to rr.44.12(1)(a) and 13.03A(e) of the Federal Magistrates Court Rules 2001 the application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $1,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1840 of 2008

SZMNQ

First Applicant

SZMNR

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In these proceedings the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 25 June 2008 which dealt with their application for review concerning their previous application for protection visas. The Tribunal concluded that it did not have jurisdiction to entertain the applicants’ application for review. The matter is before the Court today on the applicants’ application that the respondents show cause why relief should not be granted to them.

2. These proceedings were commenced by an application filed on 17 July 2008. Filed at the same time as the application was an affidavit sworn or affirmed, it is not clear, by the first applicant. To that affidavit is annexed a copy of the Tribunal’s decision record.

3. When the matter came on for directions at its first court date on 11 August 2008, there was no appearance by, or for, the applicants.  The proceedings were stood over to today for a show cause hearing. Since then the Court has written twice to the applicants at their nominated address for receiving mail to advise them of today’s date. Notwithstanding this notice, the applicants are not present in court today. When the matter was called at 10:16am they did not answer and did not appear. The matter was stood down until 10:45am in order that the applicants could arrive late were lateness the reason for their absence at 10:16am.

4. During the adjournment the Minister’s solicitor made inquiries of his office to determine whether the applicants had made contact there to explain their absence and I am advised by Mr Markus, who appears for the Minister today, that no such contact was recorded. Also during the adjournment my Associate called the matter on the ground floor, the 5th floor, the 7th floor and the 12th floor of John Madison Tower, the latter floor being where the registry is located. We are currently sitting in Court 6A on the 6th floor of John Madison Tower. No answer was made to the calls.

5. Inquiries were also made at the Court’s previous registry at Queen’s Square and it appears that the applicants have not presented themselves there in error.

6. When the matter was called again outside this Court at 10:56am there was no appearance by the applicants. Given the applicants’ absence the Minister has applied for the matter to be dealt with under r.13.03A(e). I am of the view that this is the course which the Court ought to take.

7. At a hearing to determine whether an order to show cause should be made, the order will not be made and instead the proceedings will be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001, if the applicant does not have an arguable case against the respondent. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated or where the claim is groundless or where there is a high degree of certainty about the outcome.

8. In this case the Tribunal decision annexed to the first applicant’s affidavit disclosed relevantly the following chronology:

   a)on 14 July 2006 the Minister’s delegate made a decision to refuse the application for protection visas;

   b)on 20 October 2006 the Tribunal affirmed the delegate’s decision;

   c)on 4 June 2007 the applicants’ application to this Court for judicial review of that Tribunal decision was dismissed;

   d)on 7 August 2007 an appeal from the decision of this Court was dismissed in the Federal Court of Australia;

   e)on 27 March 2008 the applicants’ application for special leave to appeal to the High Court was refused;

   f)on 25 June 2008 the Tribunal signed the decision the subject of these proceedings; and

   g)on 17 July 2008 these proceedings were commenced.

9. In this case it is clear that the applicants’ action on the basis of jurisdictional error was bound to fail because the Tribunal was correct to conclude that it did not have jurisdiction.

10. The relevant authorities on that point were collected and considered by Moore J in SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175 delivered earlier today. His Honour’s decision makes it clear, with respect, that the Tribunal made no error in concluding that it had no jurisdiction to entertain a second application for review, which was the matter which was before it.

11. In the circumstances then, the applicants’ claim is not arguable. Moreover, given the circumstances of this matter, being that the applicants are making a second challenge to a decision concerning their visa application when it has already been decided in this Court and the Federal Court that the Tribunal’s original decision was not affected by jurisdictional error and special leave to appeal to the High Court from the Federal Court has been refused, these proceedings ought not to have been brought and the Minister ought not to have been vexed with them.

12. In the circumstances it is clear that these proceedings are not only not arguable but are also an abuse of the process of the Court. In this regard, I refer to SZDMO v Minister for Immigration & Multicultural Affairs [2006] FCA 989 and SZASP v Minister for Immigration & Citizenship [2007] FCA 771.

13. Consequently, in my view the applicants do not have an arguable case for the relief claimed and the proceedings are vexatious and an abuse of the process of the Court. Therefore, pursuant to rr.44.12(1)(a) and 13.03A(e) the application will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  18 September 2008