SZJSA v Minister for Immigration & Anor [2009] FMCA 73 (2 February 2009)

Federal Magistrates Court of Australia

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SZJSA v Minister for Immigration & Anor [2009] FMCA 73 (2 February 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 73

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a decision of a delegate of the Minister not to grant the applicants protection visas. PRACTICE & PROCEDURE – Summary dismissal – abuse of process – where the decision of the Refugee Review Tribunal has been previously the subject of judicial review – where application has no reasonable prospects of success.

Federal Magistrates Court Rules 2001, r.13.10

SZJSA v Minister for Immigration and Anor (2007) FMCA 1891. SZJSA v Minister for Immigration for Immigration & Citizenship & Anor (2008) HCASL 368. SZJSA v The Minister for Immigration & Citizenship (2008) FCA 272

Applicant:

SZJSA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3376 of 2008

Judgment of:

Scarlett FM

Hearing date:

2 February 2009

Date of Last Submission:

2 February 2009

Delivered at:

Sydney

Delivered on:

2 February 2009

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application is summarily dismissed under rule 13.10(a) of the Federal Magistrates Court Rules 2001 on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceedings.
(2) In the alternative the application is dismissed under rule 13.10(c) of the Federal Magistrates Court Rules 2001 on the basis the proceeding is an abuse of the process of the Court.
(3) The applicant is to pay the First Respondent’s costs fixed in the sumo f $1000.00. I allow 3 months to pay.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3376 of 2008

SZJSA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 5 October 2006, and handed down on 26 October 2006. However, the application before this Court was not filed until 22 December 2008. The Minister for Immigration and Citizenship asks the Court for an order summarily dismissing the application.
2. It can be seen that the application on its face would appear to be out of time. However, the reason why the Minister asks the Court to dismiss the application is because the decision of the Refugee Review Tribunal has already been the subject of judicial review by the Federal Magistrates Court. The Minister, by means of a response, filed on 6 January 2009, asks for the application to be dismissed, under rule 13.10(a) of the Federal Magistrates Court rules on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding.
3. In the alternative, the Minister asks that the application be dismissed under rule 13.10(c) of the rules on the basis that the proceedings is an abuse of process of Court. The Minister relies on the affidavit of Alicia Marie Crittenden, lawyer, filed on 7 January 2009. That affidavit contains a very helpful summary of the facts upon which the Minister relies.
4. In brief, the applicant originally applied for a protection (Class XA) Visa on 5 May 2006. A delegate of the Minister refused that application on 3 June in that year. On 22 June 2006, the applicant then applied to the Refugee Review Tribunal for a review of the delegate's decision. The Tribunal signed it's decision affirming the delegate's decision on 5 October 2006.
5. The decision was handed down on 26 October 2006. The applicant then made his first application to the Federal Magistrates Court for judicial review of that decision. That application was filed on 16 November 2006. The applicant filed an amended application on 30 April 2007. The application came before Nicholls FM for hearing on 12 November 2007. On 16 November 2007, his Honour dismissed the application with costs.[1]
6. The applicant, on 6 December 2007, filed a notice of appeal from his Honour's judgment. That appeal was dismissed by Logan J in the Federal Court on 4 March 2008. The applicant then, on 28 March 2008 sought special leave to appeal from the High Court of Australia. On 20 June 2008, in the High Court of Australia, their Honours Kirby J, who I note retires from the Bench today, and Heydon J dismissed the application for leave to appeal.[2]
7. The applicant then commenced further proceedings in this Court. The applicant attended Court today. He told the Court that there was still a lot of problems back home in India, and that he had received a telephone call from his wife, who is still in India, 10 days ago. advising him that it would not be safe for him to return.
8. He told the Court that he commenced these proceedings because he needs safety to protect himself as well as his wife and his children, although I note that his wife and children are still in India. He also told the Court that he had documents and photographs. In answer to a question from the Bench his Honour said that he had previously shown those documents and photographs to Refugee Review Tribunal.
9. The fact is that the applicant has commenced proceedings again for a judicial review of a decision that has already been the subject of judicial review. He has sought to rely today on, amongst other things, a telephone conversation from his wife containing information that he heard only 10 days before this hearing. It is not open to this Court to conduct merits review but, in any event, the Court has already exercised its function of carrying out judicial review of the Tribunal decision.
10. Not only has the Court dealt with the application for judicial review, but that decision by Nicholls FM has been upheld on appeal by the Federal Court[3]. Since then application for special leave to the High Court of Australia has been dismissed.
11. There is no basis upon which a further application for review of a decision that has already been reviewed can be heard again. The application is one that, at the very least, has no reasonable prospects of success. Indeed, I would go so far to say that it is an abuse of process. Accordingly, it is a suitable case for summary dismissal under the provisions of rule 13.10(a), and alternatively, it is appropriate for summary dismissal under rule 13.10(c) of the Federal Magistrate Court rules as an abuse of the process of the Court.
12. I will not go so far on this occasion as to make an order forbidding any further application for review without leave of the Court. Although if the applicant were to be so unwise as to seek to have this decision reviewed a third time, I would have no doubt that the Court would take a very serious view indeed.
13. This is, to my mind, a suitable matter for an order for costs in favour of the first respondent. The Minister seeks the sum of $1000 in accordance with the schedule and I consider that appropriate. However, the applicant says that he is unemployed, and I take it from that that he does not have the funds to meet an order for costs in the sum of $1000, at least, not within the next 28 days. I will take this into account as far as time to pay is concerned and I will allow three pay months to pay.

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

Associate: A. Coutman

Date: 10 February 2009

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[1]SZJSA v Minister for Immigration and Anor (2007) FMCA 1891.
[2]SZJSA v Minister for Immigration for Immigration & Citizenship & Anor (2008) HCASL 368.

[3] SZJSA v The Minister for Immigration & Citizenship (2008) FCA 272