SZHYQ & Anor v Minister for Immigration & Anor [2009] FMCA 106 (10 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYQ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 106

MIGRATION – RRT decision – third application for judicial review – no arguable case – application dismissed at show-cause hearing – direction to discourage future filings.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth)

SZHYQ & Anor v Minister for Immigration [2007] FMCA 2024 SZHYQ & Anor v Minister for Immigration [2008] FMCA 1674 SZHYQ v Minister for Immigration & Citizenship [2008] FCA 734 SZHYQ v Minister for Immigration & Citizenship [2008] HCASL 517

First Applicant:

SZHYQ

Second Applicant:

SZHYR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3375 of 2008

Judgment of:

Smith FM

Hearing date:

10 February 2009

Delivered at:

Sydney

Delivered on:

10 February 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr R Baird

Solicitors for the Respondents:

Clayton Utz

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 $1,500.
(3) Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 29 November 2005 reference N05/52109, or for review of the decision of the delegate of the first respondent dated 11 August 2005, 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 5 July 2005, shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3375 of 2008

SZHYQ

First Applicant

SZHYR

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants are a husband and wife who came to Australia from Bangladesh in 2005. They applied for protection visas and these were refused by a delegate on 11 August 2005. The delegate’s decision was affirmed by the Refugee Review Tribunal on 29 November 2005.
2. The jurisdictional validity of the Tribunal’s decision has been upheld in previous litigation. Barnes FM refused an application under s.476 of the Migration Act on 6 December 2007, after hearing submissions from experienced counsel on behalf of the applicants (see SZHYQ & Anor v Minister for Immigration [2007] FMCA 2024).
3. An appeal was dismissed by Greenwood J on 15 May 2008. He found no error in her Honour’s process of reasoning, and also could find no substance to other arguments that were presented to him to show jurisdictional error (see SZHYQ v Minister for Immigration & Citizenship [2008] FCA 734).
4. An application for special leave to appeal to the High Court was refused by Hayne and Crennan JJ on 3 September 2008. They said that the decisions of the lower Judges were not attended by doubt (see SZHYQ v Minister for Immigration & Citizenship [2008] HCASL 517).
5. The applicants then followed a familiar path, by lodging a hopeless second application with the Tribunal for review of the delegate’s decision. They then commenced a second proceeding in this Court, for review of the Tribunal’s declining jurisdiction. This was dismissed by Lloyd-Jones FM on 9 December 2008 (see SZHYQ & Anor v Minister for Immigration [2008] FMCA 1674).
6. The present application is the applicants’ third application to this Court. It seeks for a second time orders by way of judicial review of the 2005 decision of the Tribunal. It is supported by grounds which have been taken from precedents which are argumentative and which show no relevance to the present case. Moreover, the applicants face insuperable difficulties in their application to this Court under principles of res judicata and Anshun estoppel.
7. I have set their application down today for a show cause hearing, and have considered a written submission which they have submitted. This has the same character as their application. In my opinion, the application has no reasonable prospects of success, and it is appropriate to dismiss it under r.44.12(1)(a) of the Federal Magistrates Court Rules on the basis that no arguable case is raised.
8. The Minister also seeks other orders to dissuade the applicants from commencing further futile litigation. On the history of the matter and the nature of the documents which the applicants have been filing, I consider it is appropriate to direct the Registry not to receive any further applications relating to their protection visa applications or subsequent administrative decisions without prior leave of the Court.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 18 February 2009