SZCRX v Minister for Immigration & Citizenship [2008] FCA 1044

FEDERAL COURT OF AUSTRALIA

SZCRX v Minister for Immigration & Citizenship [2008] FCA 1044

SZCRX and SZCRY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 715 of 2008

RARES J

4 JULY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 715 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCRX

First Applicant

SZCRY

Second Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE OF ORDER: 4 JULY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 715 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCRX

First Applicant

SZCRY

Second Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE: 4 JULY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The applicants have filed an application for an extension of time to file and serve a notice of appeal from the orders made on 9 May 2008 by Scarlett FM summarily dismissing proceedings brought by them in the Federal Magistrates Court on the ground that they were incompetent and an abuse of the process of that court. His Honour described the proceedings as an application entirely without any merit whatsoever: SZCRX v Minister for Immigration [2008] FMCA 641 at [10] 2 The application for the extension of time and leave to appeal and the affidavit sworn by the applicants on 19 May 2008 in support assert, among other things, that the Refugee Review Tribunal did not give the applicants the opportunity to reply to adverse information, did not consider all the available materials, in some way failed to allow them an adequate opportunity to respond to independent evidence of the kind referred to in s 424A(3)(a) of the Migration Act 1958 (Cth), commonly known as "country information", and otherwise, in some unspecified way, exceeded its jurisdiction in deciding to affirm the decision of the Minister's delegate to refuse to grant them protection visas. 3 The applicants had previously brought proceedings in the Federal Magistrates Court before Smith FM where they unsuccessfully argued that the tribunal's decision was affected by jurisdictional error on all the bases now repeated in the application with which Scarlett FM dealt. Smith FM dismissed the proceedings, having considered them upon their merits: SZCRX v Minister for Immigration [2007] FMCA 537. Edmonds J dismissed an appeal from that decision: SZCRX v Minister for Immigration and Citizenship [2007] FCA 1131. His Honour upheld Smith FM's determination that there was no jurisdictional error in the tribunal's decision and dismissed the appeal. 4 On 28 March 2008 Gummow and Kiefel JJ refused an application for special leave to appeal to the High Court: SZCRX v Minister for Immigration and Citizenship [2008] HCASL 86. Their Honours noted that the tribunal had found the applicant husband's claims of persecution in India were unconvincing and that the applicants would be afforded effective protection if they returned to that country. They said: "The application seeks principally to cavil with the factual findings of the Tribunal, and raises no question of law warranting the grant of special leave to appeal? There is no reason to doubt the correctness of the decisions below." 5 The application before Scarlett FM was filed on 14 April 2008, about two weeks later. I have considered the submissions of the applicants today. In substance, they asserted that they wished to re-litigate their case because they did not get the result they wanted in the first round of their litigation. They have also asked to be permitted to stay in Australia for a further six months because of the birth of their newborn child who is about two weeks old. 6 These are not matters which could conceivably support the institution of proceedings to appeal in this court. The grounds for an application for an extension of time and leave to appeal and the supporting affidavit sworn by the applicants reveal no basis upon which any appeal could possibly succeed. They are, on their face, an abuse of the process of the court and vexatious and oppressive: SZCNP v Minister for Immigration and Citizenship [2008] HCASL 216; SZBPB v Minister for Immigration and Citizenship [2008] HCASL 164; MZXOW v Minister for Immigration and Citizenship [2008] HCASL 73. Scarlett FM was correct to describe the proceedings as entirely without merit. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.