SZIXD & Anor v Minister for Immigration & Anor [2008] FMCA 609 (5 May 2008)

Last Updated: 20 May 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXD & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 609

MIGRATION – Visa – protection visa – Refugee Review Tribunal – summary dismissal. PRACTICE & PROCEDURE – Abuse of process – further application for review of a decision of the Refugee Review Tribunal that has already been reviewed.

Migration Act 1958 (Cth), ss.91R, 424 Federal Magistrates Court Rules 2001 R 13.10

SZIXD & Anor v Minister for Immigration & Anor [2007] FMCA 644 SZIXD v Minister for Immigration and Citizenship [2007] FCA 1152

First Applicant:

SZIXD

Second Applicant:

SZIXE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 257 of 2008

Judgment of:

Scarlett FM

Hearing date:

5 May 2008

Date of Last Submission:

5 May 2008

Delivered at:

Sydney

Delivered on:

5 May 2008

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application is dismissed under Rule 13.10(a) of the Federal Magistrates Court Rules 2001 as the Application has no reasonable prospect of success.
(2) The Application is summarily dismissed under Rule 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of the Court process.
(3) The Applicant is to pay the First Respondent’s costs fixed in the sum of $900.00.
(4) No further application for review of decision of the Refugee Review Tribunal signed 19 April 2006 and released on 11 May 2006 is to be accepted for filing without leave of the Court.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 257 of 2008

SZIXD & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The substantive application before the Court is an application for review of a decision of the Refugee Review Tribunal. The Tribunal decision was signed on 19 April 2006 and handed down on 11 May 2006. The Tribunal affirmed the decision made by a delegate of the Minister not to grant protection visas to the two applicants.
2. The Minister for Immigration & Citizenship has filed a response and seeks orders dismissing the application on two grounds. First, under r.13.10(a) of the Federal Magistrates Court Rules on the ground that the applicants have no reasonable prospect of successfully prosecuting the claim, and second, that the application be dismissed under r.13.10(c) of the rules on the ground that it is an abuse of the Court's process.
3. The Minister asks the Court for an order for summary dismissal.
4. The response is supported by a comprehensive affidavit sworn by Alissa Maree Crittenden, Solicitor, in which she sets out the previous proceedings.
5. The basis of the Minister's claim for summary dismissal is that the decision of the Refugee Review Tribunal has already been the subject of judicial review by the Federal Magistrate's Court. Further, that the decision of the Federal Magistrate's Court dismissing the application for review was appealed and the appeal against that decision was unsuccessful.
6. Further, that an application to the High Court of Australia for special leave to appeal has been dismissed.
7. The applicants in this application rely on three grounds. First, that the Refugee Review Tribunal denied proper application of law to the applicants. Second, that the Refugee Review Tribunal denied natural justice to the applicants, and third, that the Refugee Review Tribunal did not follow due procedure.
8. The first applicant who has appeared today has told the Court that the original Tribunal decision was wrong, and that the Courts, in reviewing that decision, have followed each other and have continued to deny justice to him. He has asked to have time to provide further documentary evidence.
9. It does not follow, I should say, that where a decision of the Court is appealed, that the appeal is always unsuccessful. It certainly happens that the Federal Court, or the Full Federal Court, upholds an appeal that is against decisions of the Federal Magistrates Court. It certainly happens that the High Court of Australia will grant special leave to appeal and appellants will be successful.
10. That has not happened in this case. Ms Crittenden for the Minister has submitted that any arguments that the applicant sought to make on this occasion should have been made in the original proceedings. I look at the grounds upon which he seeks to rely today and I am comparing them with the grounds on the application that was before a Federal Magistrate Lloyd-Jones on 22 March 2007.
11. At para.8 of his Honour's decision his Honour sets out the grounds in the applicant's amended application. The principal ground was a claim that the Tribunal breached the rules of natural justice and there were 10 particulars given, some of which would appear to be separate grounds. In brief, they are a failure to disclose conclusions that would not obviously have been open on the known evidence, a failure to ask the applicant the right question, a failure to explain why the Tribunal thought that an attack on the way to Ahmedabad was an ordinary robbery and not an attack constituting serious harm within the meaning of the Refugees Convention.
12. Fourth, a claim that the Tribunal misinterpreted the meaning of "serious harm" within the meaning of the Refugees Convention and s.91R of the Migration Act. Fifth, an error by the Tribunal in not finding a certain set of circumstances serious harm within the meaning of s.91R of the Migration Act. Sixth, an error in concluding that there was effective state protection available to the applicants. Seventh, an error in not explaining the basis of certain conclusions. Eighth, a breach of s.424A of the Migration Act. Ninth, misinterpretation again of the meaning of serious harm, and a carry all claim of an error not accepting that the applicant was a refugee.
13. I note that his Honour noted that the final ground contained a double-negative and that the error referred to was an error in not accepting that the applicant was not a refugee within the meaning of the Refugees Convention, but clearly his Honour was aware of what the applicant meant.
14. Lloyd-Jones FM considered these grounds and the submissions in support of them in, with respect, a comprehensive decision which his Honour handed down on 1 May 2007. The application was dismissed with costs[1].
15. The applicants appealed against that decision and the appeal was heard by Tamberlin J in the Federal Court, exercising a jurisdiction in the Full Court of the Federal Court. His Honour considered the material before him and on 30 July 2007 dismissed the appeal with costs[2]. The applicants then sought special leave to appeal to the High Court of Australia.
16. On 28 March 2008 Gummow and Kiefel JJ dismissed the application for special leave to appeal. On 10 April 2008 the applicants commenced these proceedings.
17. The fact is that the decision of the Refugee Review Tribunal has been subjected to judicial review by the Federal Magistrates Court and the application was dismissed. An appeal against the decision of
    Lloyd-Jones FM was dismissed and an application for special leave to appeal to the High Court of Australia has been dismissed.
18. Within a fortnight of that application being dismissed the applicants have started again. There are no fresh grounds, even if it were open to fresh grounds. The first applicant's claim to the Court today that there is fresh evidence that should be brought is not a matter that I can consider. I am of the view that these proceedings have no prospect of success on a substantive basis and should be summarily dismissed.
19. I am also of the view, the very nature of the proceedings constitutes an abuse of process of the Court.
20. I propose also to make an order of summary dismissal relying on the fact that these proceedings are an abuse of the Court's process. Because these proceedings are an abuse of process I propose to order that no further application for review of the Tribunal decision should be accepted for filing without leave of the Court.
21. I propose to dismiss the application with costs.

I certify that the preceding 21Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-onetwenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 13 May 2008

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[1] See SZIXD & Anor v Minister for Immigration and Anor, [2007] FMCA 644
[2] See SZIXD and Minister for Immigration and Citizenship, [2007] FCA 1152