SZGJY v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for leave to appeal from a decision of the Federal Magistrates Court dismissing as an abuse of process an application to review a decision of the Refugee Review Tribunal that it had no jurisdiction to deal with the applicant's second application to it: SZGJY v Minister for Immigration [2008] FMCA 437. 2 The applicant had originally sought to challenge a decision of the tribunal made on 8 April 2005 which affirmed a decision of a delegate of the Minister made on 19 October 2004 to refuse him a protection visa. The Federal Magistrates Court dismissed that application: SZGJY v Minister for Immigration [2006] FMCA 1821. It sound that there was no jurisdictional error or any basis in any of the grounds of challenge upon which it could grant the applicant relief. He appealed to this court which dismissed the appeal: SZGJY v Minister for Immigration and Multicultural Affairs [2007] FCA 380. The applicant then sought special leave to appeal from the High Court of Australia and on 12 December 2007 Gummow and Kiefel JJ dismissed the application: SZGJY v Minister for Immigration and Multicultural Affairs [2007] HCA Trans 783. Gummow J said that the tribunal had found the applicant's claim lacked credibility and that the courts had held that that finding was available. There was no breach of any statutory or common law obligation of procedural fairness. He said there was no reason to doubt the correctness of the decisions of the courts below and special leave was accordingly refused. 3 Not content with that, on 2 January 2008 the applicant lodged a further application for review of the delegate's 2004 decision in the tribunal. On 25 January 2008 the tribunal determined that it did not have jurisdiction. It was undoubtedly correct in that finding, as Gleeson CJ, McHugh, Gummow and Hayne JJ explained in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 355-356 [30]. They said that it would be inconsistent with the scheme and contrary to the ordinary reading of Div 2 of Pt 7 of the Migration Act 1958 (Cth) to treat the decision of the tribunal as provisional in nature. They said: "In the situation where the Tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate …, the Act did not confer upon the Tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances." 4 The applicant then filed an application in the Federal Magistrates Court seeking to challenge the 2008 decision of the tribunal. He argued that the tribunal "… failed to act according to migration laws and regulations". He said that it did not apply the correct laws when considering the matter, misinterpreted the migration laws and failed to exercise jurisdiction under the Act. In my opinion those grounds of appeal were entirely without substance and contrary to the decision in Thiyagarajah 199 CLR 343. 5 The Federal Magistrates Court dismissed the application to review the 2008 decision of the tribunal saying, in my view correctly, that the tribunal had no longer any jurisdiction in relation to the original 2004 decision of the delegate, after it had exercised its power in 2005 to give a decision affirming the delegate's decision, which had been upheld in the applicant's subsequent challenges to which I have referred. As the trial judge pointed out, it is all too common for repeat applications to the tribunal to come before the Federal Magistrates Court. In his view such applications were an abuse of the process of that court: SZGJY [2008] FMCA 437 at [11]. I agree. 6 Moreover, the attempt to challenge the decision of the trial judge and the tribunal (made in 2008) in this Court are an abuse of the process of this Court. In effect, the applicant is dissatisfied with the original decision of the tribunal. While he may, or may not, have a grievance which he feels has justification in that respect, it does not justify his revisiting the refusal of the tribunal to grant him a protection visa, time and again in the courts, after he had exercised his legitimate right to challenge the original decision of the tribunal as he did. I am of opinion that these proceedings are foredoomed to fail and that they are themselves an abuse of the process of the Court and should be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.