SZIAA v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for leave to appeal against a decision of the Federal Magistrates Court: SZIAA v Minister for Immigration [2007] FMCA 1095. The application was heard by Smith FM, who dismissed it saying there was no conceivable basis for supporting it. I agree. The application sought to challenge a decision of the Refugee Review Tribunal made on 18 November 2005, and handed down on 8 December 2005, which affirmed the decision of the delegate of the minister not to grant a protection visa to the applicant. The tribunal did not accept some of the applicant's claims, found there was no evidence to support some of them. It found that he would be afforded adequate and effective police protection against harm that he claimed to fear, and it was not satisfied that he had a well‑founded fear of persecution for a convention reason. 2 The applicant previously sought constitutional writ relief against the tribunal's decision in the Federal Magistrates Court in 2006; that is, a year prior to the application the subject of the present proceedings: SZIAA v Minister for Immigration [2006] FMCA 443. On that occasion, Driver FM found that the decision of the tribunal was free from jurisdictional error, and therefore the applicant's claim failed. Cowdroy J dismissed an appeal from that decision: SZIAA v Minister for Immigration and Multicultural Affairs [2006] FCA 1076. The applicant sought special leave to appeal from the High Court of Australia: SZIAA v Minister for Immigration and Multicultural Affairs [2007] HCA Trans 224. Kirby and Callinan JJ said: 'The applicant has not advanced any questions of law that would justify a grant of special leave to appeal. The tribunal gave adequate consideration to the applicant's case on the merits.' 3 Their Honours refused the application for special leave to appeal on 23 May 2007. It is in that context that on 12 June 2007, the applicant made the application to the Federal Magistrates Court, which sought again to challenge the same decision of the tribunal that had been the subject of the prior litigation. The grounds of the application were perfunctory and raised no arguable claim. Smith FM referred to the prior litigation in coming to his conclusion to which I have referred above. He said that he was satisfied, after hearing the applicant, that he had not understood that the litigation had to come to an end, and made an order that no further applications be accepted from him. 4 Before me today, I asked the applicant why I should grant leave to appeal. He responded that he hoped he would receive some form of justice. He said he was 'relitigating', and feared that if he returned home he would be killed. 5 The court is not entitled to engage in a review of the merits however the applicant might feel about those. In his affidavit supporting his application for leave to appeal, the applicant has asserted that the federal magistrate did not consider the application, and that he was not satisfied with his Honour's order. The draft notice of appeal contains grounds that include an assertion that his Honour dismissed the case 'without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal'. His Honour was entitled to do so because that had already been litigated. 6 This application is simply an abuse of the process of the court for the reasons which I gave in SZEHN v Minister for Immigration and Citizenship [2007] FCA 1451 today. I am of the opinion that the application should be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.