FEDERAL COURT OF AUSTRALIA

SZHZX v Minister for Immigration & Citizenship [2008] FCA 72

Migration Act 1958 (Cth) s 424A

SZHZX v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 1065

SZHZX v Minister for Immigration & Multicultural Affairs [2006] FCA 1469

SZHZX v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 363

SZHZX v Minister for Immigration & Anor [2007] FMCA 2051

SZHZX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 37 OF 2008

BUCHANAN J

14 FEBRUARY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BUCHANAN J:

1                     This is an application for leave to appeal against an interlocutory judgment of the Federal Magistrates Court of Australia (‘the FMCA’) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) as an abuse of process (SZHZX v Minister for Immigration & Anor [2007] FMCA 2051).

2                     The applicant is a citizen of India.  He arrived in Australia on 11 June 2005 and on 22 July 2005 applied for a protection visa.  On 11 August 2005 a delegate of the Minister for Immigration and Citizenship refused his application.  He applied to the RRT for review of the delegate’s decision.  On 17 November 2005 the RRT affirmed the delegate’s decision.  The applicant thereupon sought judicial review of the RRT decision in the FMCA.  That application was dismissed (SZHZX v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 1065).  An appeal to this Court from the decision of the FMCA was also dismissed (SZHZX v Minister for Immigration & Multicultural Affairs [2006] FCA 1469).  In his judgment Nicholson J identified the grounds which were pursued in the FMCA and the different grounds which were later pursued in this Court.  Even though the appeal was liable to be dismissed because the pursuit in this Court of different grounds of appeal was not directed to showing error in the decision of the FMCA, Nicholson J dealt with the additional matters raised by the appellant and rejected his arguments.  A subsequent application for special leave to appeal to the High Court was refused (SZHZX v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 363).

3                     Shortly after the dismissal of his application for special leave to appeal to the High Court the appellant brought a further application to the FMCA.  On 4 December 2007 that application was dismissed as an abuse of process (SZHZX v Minister for Immigration & Anor [2007] FMCA 2051).  That is the decision to which the present application for leave to appeal relates.

4                     The applicant filed no written submissions in support of his application for leave to appeal.  At the hearing of his application for leave to appeal he said that he had nothing to add to what appeared in the application.   

5                     The application for leave to appeal contends that the FMCA was in error in not finding that the RRT was in breach of its obligations under s 424A of the Migration Act 1958 (Cth).  That is the same issue which the applicant ventilated before this Court in his earlier appeal.  The latest proceedings commenced by him before the FMCA were an abuse of process.  There is no error in the decision of the FMCA under appeal.  The appeal must be dismissed.  It is appropriate to dismiss it with costs.

Associate:

Dated:         14 February 2008