FEDERAL COURT OF AUSTRALIA

SZIIG v Minister for Immigration and Citizenship

[2008] FCA 886

MIGRATION – application for leave to appeal from decision of Federal Magistrates Court dismissing application to review decision of Refugee Review Tribunal that it had no jurisdiction in the matter

Held:  Application dismissed

Minister for Immigration v Thiyagarajah (2000) 199 CLR 343 cited

SZGJY v Minister for Immigration & Citizenship [2008] FCA 888 followed

Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 followed

SZIIG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 403 of 2008

RARES J

8 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal is dismissed.

2.                  The applicant pay the first respondent’s costs fixed in the sum of $1,200.

3.                  The applicant file no further proceedings in this Court in respect of reviewing the decision of the delegate of the first respondent made on 31 May 2001 or any decision of the second respondent in respect of that decision, without the leave of a judge.

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

REASONS FOR JUDGMENT

(REVISED FROM THE JUDGMENT)

1                     This is an application for leave to appeal from a decision of the Federal Magistrates Court dismissing an application to review a decision of the Refugee Review Tribunal (given on 17 January 2008) that it had no jurisdiction in the matter:  SZIIG v Minister for Immigration & Citizenship [2008] FMCA 344.

2                     The applicant arrived in Australia as long ago as 30 August 1997.  The circumstances in which the application to the tribunal was made are as follows.  The applicant had originally sought to review a decision of the Refugee Review Tribunal made on 30 June 2003 and handed down on 25 July 2003 in respect of a decision of a delegate of the Minister given on 31 May 2001 to refuse him a protection visa.   For reasons which I do not understand, he was originally given the pseudonym SZBFE.  His application to the Federal Magistrates Court under that pseudonym was dismissed:  SZBFE v Minister for Immigration [2005] FMCA 189.  Subsequently, Gyles J upheld his appeal and quashed the decision of the Refugee Review Tribunal.  He remitted the matter for the tribunal to reconsider according to law:  SZBFE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1162.

3                     The tribunal subsequently reconsidered the matter and, in a decision signed on 29 December 2005 and handed down on 12 January 2006, it again affirmed the decision of the delegate not to grant the applicant a protection visa.  The Federal Magistrates Court refused the applicant’s claims for constitutional writ relief against the 2006 decision of the tribunal:  SZIIG v Minister for Immigration [2006] FMCA 1410.  In that decision Scarlett FM found that the tribunal had said that the applicant’s statement of events was highly implausible and it did not accept that he, being a Muslim, ever had a romantic relationship with a girl of the Hindu faith.  His Honour recorded that the tribunal considered the applicant’s account of events had been fabricated to support his refugee status claims.  His Honour rejected the applicant’s challenges to the way in which the tribunal exercised its jurisdiction in coming to those findings.  His Honour dismissed the application for constitutional writ relief.  Marshall J dismissed an appeal from that decision:  SZIIG v Minister for Immigration & Citizenship [2007] FCA 322. 

4                     On 15 November 2007 Gummow and Kiefel JJ refused the applicant’s application for special leave to appeal.  They said that there was no reason shown to doubt the correctness of the conclusions reached by the courts below and that the tribunal’s decision was based on its consideration of the facts.  They said that it had not been shown that the tribunal had failed to permit the applicant to present evidence, and they said it was not obliged to make independent investigations, or to take into account, or refer to in its reasons, the evidence which the applicant identified as the basis of his claim to special leave to appeal:   SZIIG v Minister for Immigration & Citizenship [2007] HCA Trans 681.

5                     Next, the applicant filed with the tribunal on 13 December 2007 a further application for review of the delegate’s 2001 decision.  On 17 January 2008 the tribunal held that it did not have jurisdiction in that matter.  The applicant then sought to challenge the tribunal’s decision in the Federal Magistrates Court and it dismissed that application:  SZIIG v Minister for Immigration [2008] FMCA 344.  The trial judge recorded the litigious history to which I have referred.  He said that the tribunal’s decision earlier this year was undoubtedly correct and that he could see no argument reasonably open to the applicant to the contrary.  The trial judge said that the applicant’s claim to a writ of mandamus compelling the tribunal to hear and determine his case according to law was foredoomed to fail.  He said, that in effect, the applicant was seeking to have the court undertake a merits review on the material that he placed before the delegate and the previous tribunals.  He found that the application was an abuse of the process of the Federal Magistrates Court.  He said that it was obviously untenable, manifestly groundless and utterly hopeless, and that there were no reasonable grounds upon which the application could be made.  He said that the applicant had habitually and persistently instituted proceedings relating to the primary decision regarding his application for protection visa and that the current application was frivolous and vexatious.

6                     While it is clear that the applicant’s first set of challenges to the initial decision of the tribunal was properly grounded, since he succeeded before Gyles J, the second challenges failed.  The current challenge is a further attempt to attack the 2006 decision of the tribunal.  For the reasons that I gave in SZGJY v Minister for Immigration & Citizenship [2008] FCA 888, it is clear that the tribunal had no jurisdiction on the second application for review filed at the end of last year:  see also Minister for Immigration v Thiyagarajah (2000) 199 CLR 343 at 355-356 [30] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

7                     In my opinion, his Honour was correct to find that the present proceedings were an abuse of the process of the Federal Magistrates Court since they had no prospect of success and were seeking to re-agitate proceedings which had already been determined adversely to the applicant, through his previous challenges that had culminated earlier, in November last year, in his unsuccessful application for special leave to appeal.

8                     As he said in his affidavit sworn on 20 March 2008 in support of his application for leave to appeal to this court:

“I submitted a new application at the Refugee Review Tribunal to review the decision of the delegate on 13 December 2007 and the Tribunal refused my application on 17 January 2008.”

9                     It is manifest that the tribunal never had any jurisdiction to decide a subsequent application to review the 2001 decision of a delegate once the 2006 decision of the tribunal had been given and not set aside in the courts.  That decision replaced the delegate’s decision and it was the only relevantly operative decision in law:  Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344.

10                  I am of opinion that the application should be dismissed.

Associate:

Dated:         12 June 2008