S1914 of 2003 v Refugee Review Tribunal - [2005] FMCA 1954

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1914 of 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

[2005] FMCA 1954

MIGRATION – RRT decision – previous judicial review proceedings – application dismissed as abuse of process.

Migration Act 1958 (Cth), ss.424A, 474(1), 477(1A), 483A
Federal Magistrates Court Rules 13.10(c)
Acts Interpretation Act 1901 (Cth) s.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant S1914/2003 v Minister for Immigration (2005) FCA 601
Applicant S1914/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 293
Applicant S1914/2003 v MIMIA (2004) FCA 589
Applicant S1174/2002 v Refugee Review Tribunal (2004) FCA 289
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

Applicant:

APPLICANT S1914 of 2003

First Respondent:

REFUGEE REVIEW TRIBUNAL

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2786 of 2005

Judgment of:

Smith FM

Hearing date:

7 December 2005

Delivered at:

Sydney

Delivered on:

7 December 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Second Respondent:

Ms Hanstein

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the second respondent’s costs on an indemnity basis in the sum of $3,000.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 19 February 1998 reference N97/15469 or for review of the decision of the delegate of the second respondent dated 25 March 1997 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2786 of 2005

APPLICANT S1914/2003

Applicant

And

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this matter was filed on 30 September 2005, and is an application under s.483A of the Migration Act 1958 (Cth) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal handed down on 19 February 1998. The Tribunal affirmed a decision made by a delegate on 25 March 1997 refusing an application for a protection visa, which the applicant lodged on 16 October 1996 shortly after his arrival in Australia.
The applicant claimed, and the Tribunal accepted, that he was a national of Bangladesh. However, the Tribunal was not satisfied that he was a person to whom Australia had protection obligations in relation to his return to Bangladesh, based on claims that he would be persecuted due to his being a Hindu man married to a Muslim woman.
The Court's jurisdiction under s.483A was repealed by the Migration Litigation Reform Act 1995 (Cth), but the repeal does not affect the continuing of the present proceeding (see Sch.1 cl.41 of the amending Act, and the Acts Interpretation Act 1901 (Cth) s.8).
At the first return date of the application I gave orders adjourning the application to today for hearing of an interlocutory application for its summary dismissal based on a previous history of litigation. I have today heard argument from the Minister and the applicant on that issue.
The applicant's history of litigation is as follows. The Tribunal’s decision was made on 19 February 1998. The applicant purported to challenge that decision by joining the Ms Lie class action in the High Court. Without having to demonstrate any merit at all, he enjoyed the benefits of that joinder until February 2004, when Emmett J dismissed his individual application seeking orders nisi (see Applicant S1174/2002 v Refugee Review Tribunal (2004) FCA 289).

The applicant sought an extension of time to appeal from that judgment, but this was refused by Jacobson J on 4 May 2004 (see Applicant S1914/2003 v MIMIA (2004) FCA 589).
The applicant then within 28 days commenced a proceeding in this Court invoking its jurisdiction under s.483A, and seeking judicial review of the Tribunal’s decision. That matter came on for hearing before Mowbray FM who dismissed the application on 22 February 2005 (see Applicant S1914/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 293).
His Honour considered an amended application containing numerous propositions, and distilled from it and from the applicant's submissions four grounds of review, which his Honour addressed and rejected. These included a complaint that there had been a failure to comply with s.424A of the Migration Act which, as his Honour pointed out, had not been enacted at the time of the Tribunal's decision. His Honour rejected other arguments also. His Honour concluded:
33. Counsel for the Respondent Minister has submitted to me that the application must be dismissed. I agree. It is apparent the Tribunal formed an adverse view about the credibility of the claims made by the applicant. These findings were reasonably open to the Tribunal on the material before it. As McHugh J has said in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 the finding as to whether a person’s claim should be believed, that is, a finding on credibility is the function of the decision maker par excellence.
34. As I have said, the findings were reasonably open to the Tribunal. I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision.
The applicant appealed to the Federal Court, where his appeal was heard and determined by Wilcox J on 4 May 2005. His Honour dismissed the appeal (see Applicant S1914/2003 v Minister for Immigration (2005) FCA 601). A notice of appeal which was before his Honour raised grounds including complaints that the Tribunal’s decision was affected by bias and that other errors had been made by the Tribunal. These were elaborated in an amended notice of appeal which contained seven pages of argument, much of which was irrelevant. His Honour when dismissing the appeal said:
There is no substance in any of the matters raised by the appellant.
The applicant then filed an application for special leave to appeal to the High Court of Australia, and filed a draft notice of appeal making many contentions concerning the decision of the Tribunal and of the Courts below. On 8 September 2005, Hayne and Callinan JJ announced the decision of the Court under r.41.10, dismissing the application. Hayne J said:
An appeal to this Court will enjoy no prospect of success.
Within 28 days of that decision, the applicant commenced his third proceeding for judicial review of the Tribunal decision, being the present application. His application contains four grounds alleging failure to consider matters, denial of natural justice and bias. Further numerous contentions concerning the Tribunal's decision are contained in an amended application which was filed in Court today. I have read that document. Much of it has been taken from submissions in other cases, and patently has no bearing on the present Tribunal decision. Other parts make contentions of jurisdictional error without particulars. There are also arguments as to the factual merits of the Tribunal's assessments.
In my opinion, it is not necessary for me to engage in a detailed examination of the grounds which are being put forward by the applicant in support of his present application. This is because, in my opinion, all of the contentions made in his documents and orally to me today are contentions which, if they have merit, could reasonably have been put forward in his previous proceeding in this Court and, if so permitted, on appeal. He has not, in my opinion, pointed today to any special circumstance which should allow him to make any new arguments in fresh proceedings. I therefore consider that his application is hopeless because it can undoubtedly be dismissed on grounds of Anshun estoppel (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).
I also record my opinion that the application would be met with an absolute estoppel, by way of issue estoppel arising from the finding of Mowbray FM that the Tribunal's decision did not reveal error going to jurisdiction. The effect of his Honour's finding is that the Tribunal's decision has been found to be a privative clause decision for which relief is barred under ss.474(1) & 477(1A) of the Migration Act.
For the above reasons I consider that it is appropriate to dismiss the present application summarily under r.13.10(c).
The applicant’s history of litigation reveals an inability by the applicant to appreciate that there must be an end to his litigation concerning the validity of the Tribunal's decision. His submissions to me vehemently maintained that the Tribunal's decision was wrong and that he should be allowed to have a rehearing by the Tribunal. It appears to me that he will continue to litigate without any appreciation of any of the principles underlying the doctrine of estoppel.
I therefore consider it also appropriate to give a direction to the Registry of this Court precluding the receipt of further applications in relation to decision-making on the applicant's protection visa without prior leave of the Court. I also consider the circumstances justify an award for costs on an indemnity basis.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 11 January 2006