SZLGF & Anor v Minister for Immigration & Anor [2009] FMCA 309 (31 March 2009)

Last Updated: 21 April 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 309

MIGRATION – RRT decision – previous unsuccessful litigation – no arguable case – application dismissed at first court date in absence of applicants – direction to discourage future filings.

Federal Magistrates Court Rules 2001 (Cth), rr.16.05, 44.12(1)(a) Migration Act 1958 (Cth)

SZLGF & Anor v Minister for Immigration [2008] FMCA 254 SZLGF & Anor v Minister for Immigration & Citizenship [2008] FCA 1369 SZLGF & Anor v Minister for Immigration & Citizenship [2009] HCASL 14

First Applicant:

SZLGF

Second Applicant:

SZLGG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 562 of 2009

Judgment of:

Smith FM

Hearing date:

31 March 2009

Delivered at:

Sydney

Delivered on:

31 March 2009

REPRESENTATION

Counsel for the Applicant:

No Appearance

Counsel for the Respondents:

Mr G Conomos

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 $1,000.
(3) The first respondent must within the next 2 days send to the applicants a copy of today’s order, and must inform the applicants of the provisions of Rule 16.05(2)(a) and that the Court would expect that any application to set aside the order would be filed within 21 days.
(4) Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 21 August 2007 reference 071477372, or for review of the decision of the delegate of the first respondent dated 19 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 1 May 2007, shall be accepted for filing without prior leave of the Court. This direction shall not apply to an application under r.16.05(2)(a) in relation to these orders.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 562 of 2009

SZLGF

First Applicant

SZLGG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 10 March 2009, in which the applicants seek judicial review of a decision of the Refugee Review Tribunal handed down on 21 August 2007. The Tribunal affirmed a decision of a delegate, refusing to grant protection visas to the applicants.
2. The applicants have already brought proceedings under the same jurisdiction of the Court in relation to the same decision of the Tribunal. Their application was dismissed by Nicholls FM on 19 March 2008 (see SZLGF & Anor v Minister for Immigration [2008] FMCA 254). His Honour very thoroughly considered whether the Tribunal's decision was affected by any jurisdictional error, whether argued by the applicants or not, and found that it was not so affected in its consideration of the applicant husband’s application. Nicholls FM thought that there was error made by the Tribunal in relation to the applicant wife's application, but refused relief for that applicant on the ground that the error made no difference to the outcome.
3. The applicants appealed, and their appeal was dismissed by Graham J on 15 August 2008 (see SZLGF & Anor v Minister for Immigration & Citizenship [2008] FCA 1369). His Honour considered all the arguments presented, and said at [40]: “It is plain that there is no basis upon which the Court could find jurisdictional error in respect of the findings of the Tribunal”. His Honour did not agree with Nicholls FM that the Tribunal had made an error in relation to its decision concerning the applicant wife's claims.
4. The applicants then sought special leave to appeal to the High Court, but this was refused by Gummow and Keiffel JJ on 11 February 2009 (see SZLGF & Anor v Minister for Immigration & Citizenship [2009] HCASL 14). Their Honours noted that “the applicants’ draft notice of appeal is of a template variety”. They said that the applicants had failed to advance any question of law that would justify a grant of special leave to appeal.
5. As I have indicated, the applicants have now filed an application seeking to re-litigate the issue of jurisdictional error which has been addressed in the previous litigation. Their grounds of application are again of a “template variety”, and disclose no contention referrable to the particular matter. On its face, the application does not raise an arguable case for the relief claimed. In the context of the previous litigation, there is no prospect that it could succeed in the face of principles of res judicata or Anshun estoppel. It is prima facie also an abuse of process.
6. The Minister has filed a response seeking summary dismissal of the application, and has sent a letter to the applicants informing them that this relief would be sought today at the first court date of the application. The applicants have not appeared, nor made any communication to the Court to explain their absence. As with many such applicants living in the region of Griffith, I am concerned that they may be acting on improper advice to bring hopeless litigation with the sole purpose of protracting their presence in Australia under bridging visas.
7. In all the circumstances, I consider it appropriate to proceed with the Minister's application today in the absence of the applicants under r.13.03C(1)(e).
8. For the reasons indicated above, I am not satisfied that the application raises an arguable case for the relief claimed. I consider it is appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules.
9. Moreover, in view of their litigation history, and the nature of the documents being relied upon by the applicants, I consider it appropriate to direct the Registry not to receive any further applications from these applicants concerning their protection visa applications except with the leave of the Court.
10. This order will not apply in relation to any application under r.16.05(2)(a) to set aside today's orders. If they make such an application they will, however, need to present evidence to the Court explaining their absence today, and be able to point to merits in the present application which justifies its restoration to the list

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 16 April 2009