SZLHC v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The applicants have filed an application for leave to appeal against a decision of the Federal Magistrates Court given on 5 December 2007 to dismiss their proceedings on the basis that they had no reasonable prospect of being successfully prosecuted and that they were an abuse of the process of the Court: SZLHC v Minister for Immigration [2007] FMCA 2026. Scarlett FM found that the application before him was essentially the same application and sought the same relief on the same grounds as the applicants had raised in earlier proceedings seeking to challenge a decision of the delegate of the Minister made under the Migration Act 1958 (Cth) refusing the first applicant's and her children's claims for protection visas. 2 The only substantive claims were made by the first applicant. Finn J dismissed the initial proceedings on the grounds that the delegate had not been shown to have committed any jurisdictional error in rejecting the claims: SBNC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 200. (New pseudonyms have been given to the applicants for their current round of litigation.) The applicants were legally represented before his Honour. They sought to file a notice of appeal out of time, which application was granted by Besanko J: SBNC v Minister for Immigration and Multicultural Affairs [2006] FCA 843. 3 Later French, Lander and Besanko JJ dismissed the appeal from Finn J on the grounds that the delegate had not erred in law and Finn J had been correct to dismiss the initial application: SBNC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 137 at [15]. Gummow and Heydon JJ refused the applicants' application for special leave to appeal saying that their case before the High Court disclosed no error on the part of the Full Court of the Federal Court and any appeal had insufficient prospects of success to warrant a grant of special leave: SBNC v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCA Trans 277. 4 Following the High Court's decision, the applicants commenced the proceedings which came before Scarlett FM. After his Honour dismissed those proceedings the applicants filed, on 11 April 2008 in this court, an application for leave to appeal supported by two affidavits sworn by the first applicant on 25 February 2008. She claimed that she had not been notified by the Court in a proper manner of the time required within which she should lodge her application for leave to appeal, that she was not educated in legal matters and therefore was unable to find these matters out herself or become aware of the risks. 5 In her second affidavit she said that her family and she were prejudiced as a result of the Refugee Review Tribunal not reviewing their applications because that application had been filed outside the time limit. That is correct. The tribunal had declined to entertain an application to review the delegate's decision, hence the only avenue to challenge the refusal of her protection visa was the one taken by the applicants before Finn J, namely to challenge that decision directly. In her second affidavit the applicant also said that the delegate of the respondent had failed to find that her children would suffer persecution in their education if they were not granted protection visas, they being citizens of Fiji, and that there was a failure of the delegate to consider the harm suffered by the applicant's family in accordance with s 91R(2) of the Act. She claimed that she and her family would be at risk of their lives if they were forced to return to Fiji and that that risk was not considered by the delegate. A draft notice of appeal was attached to the second affidavit which sought to raise those matters. 6 As Scarlett FM found, this litigation is an attempt to relitigate a case that has already been decided against the applicants. He was correct to have found that the application was an abuse of the process of the Federal Magistrates Court and was one which could not succeed because it had already been heard and determined. He found correctly that there was no arguable case for the relief now claimed. 7 In those circumstances there is no basis to conclude that there should be any extension of time granted in which leave to appeal could be sought, nor could any appeal have any prospect of success. The proceedings are properly characterized as an abuse of the process of the Court. For these reasons, I refuse the application for an extension of time. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.