FEDERAL COURT OF AUSTRALIA

SZBKV v Minister for Immigration and Citizenship

[2008] FCA 889

SZBKV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 471 of 2008

RARES J

8 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant pay the first respondent’s costs fixed in the sum of $1,100.

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 26 August 2002 to refuse him a protection visa or the decision of the second respondent made on 18 November 2005 and handed down on 8 December 2005 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 TRANSCRIPT)

1                     This is an application for leave to appeal from a decision of the Federal Magistrates Court refusing to permit the applicant to challenge for a second time a decision of the Refugee Review Tribunal made on 18 November 2005 and handed down on 8 December 2005:  SZBKV v Minister for Immigration [2008] FMCA 408.

2                     When the proceedings were initially called on this afternoon there was no appearance for the applicant.  However, with the assistance of the Court’s appointed Punjabi interpreter, a telephone call was made to the applicant.  He said he was at Parramatta and would not be able to make it to Court in time this afternoon.  Accordingly, I arranged for a telephone to be placed in the courtroom and the applicant was again contacted on the mobile telephone number provided in his application for leave to appeal to this Court.  He fully participated in the hearing by telephone with the assistance of the interpreter.

3                     The applicant arrived in Australia on 3 July 2002.  A delegate of the Minister refused his application for a protection visa on 26 August 2002.  He applied to the Refugee Review Tribunal for a review of that decision and the tribunal dismissed that application by a decision made on 16 July 2003 and handed down on 30 August 2003.  The appellant unsuccessfully applied to the Federal Magistrates Court to review that decision:  SZBKV v Minister for Immigration [2005] FMCA 784, but an appeal to this court was allowed by consent on 20 September 2005 and the matter remitted to the tribunal to determine according to law.  Then for reasons which are not apparent, the applicant was given a new pseudonym, SZIAK, and he unsuccessfully challenged the decision of the tribunal handed down on 8 December 2005 to affirm the decision of the 2002 delegate:  SZIAK v Minister for Immigration [2006] FMCA 1115.

4                     The applicant then appealed to this Court, and Dowsett J rejected the appeal:  SZIAK v Minister for Immigration and Multicultural Affairs [2006] FCA 1568.  His Honour noted that the tribunal had not accepted the applicant as a witness of truth and found him to be unreliable, so that there was no reliable evidence upon which it could find his claim to a protection visa to be made out.

5                     On 3 October 2007 Gummow and Kiefel JJ dismissed an application for special leave to appeal to the High Court:  SZIAK v Minister for Immigration and Multicultural Affairs [2007] HCA Trans 568.  Their Honours said that the tribunal did not find the applicant to be a truthful witness, disbelieved his claims about membership of a political group to which he said he was an adherent and disbelieved his claims to have been arrested and detained by the police.  They said the application for special leave did not advance any question of law that would justify the intervention of the High Court and that there were no prospects of success or any appeal in that court.

6                     On 24 October 2007 the applicant filed fresh proceedings in the Federal Magistrates Court seeking to challenge the 2005 decision of the tribunal.  Cameron FM dismissed the application as an abuse of a process of the Federal Magistrates Court and said that it did not raise any arguable case:  SZBKV v Minister for Immigration [2008] FMCA 408.  He said that there was no substantive difference between the allegations contained in the application then before him and those already dismissed by that court in 2006.

7                     On 8 April 2008 the applicant sought leave to appeal from his Honour’s decision in this court.  Among other things, he swore an affidavit in which he said that he should be granted leave to appeal because the tribunal had not carried out an independent assessment of his claims and it had discredited his credibility and attacked his claims as fraudulent and a fabrication.

8                     It is plain from the affidavit and from the material before his Honour that the applicant seeks to re-litigate the proceedings which he unsuccessfully pursued in the litigation challenging the 2005 decision of the tribunal. These proceedings are an abuse of the process of the court and they foredoomed to fail:  see SZEHN v Minister for Immigration and Citizenship [2007] FCA 1451 at [13]–[14].  The application is simply an attempt to re-litigate the proceedings which have already been determined adversely to the applicant.

9                     Accordingly, for the reasons I have given, I am of the opinion the application should be dismissed.

Associate:

Dated:         12 June 2008