SZAHH v Minister for Immigration

[2006] FMCA 488

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAHH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 488

MIGRATION – Application for review of Refugee Review Tribunal – refusal of a Protection (Class XA) Visa – decision of the Tribunal previously upheld by the Federal Magistrates Court on two separate occasions, the Federal Court and the High Court – new application dismissed as an abuse of process.

Federal Magistrates Court Rules 2001 (Cth), rr.10.01, 13.10
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.476, 477
Migration Litigation Reform Act2005 (Cth)

SZAHH & Anor v Minister for [2003] FMCA 493
SZAHH v Minister for Immigration [2004] FCA 296
SZAHH & Ors v Minister for Immigration [2005] HCA Trans 135
SZAHH & Ors v Minister for Immigration [2005] FMCA 819

Applicant: SZAHH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG834 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 5 April 2006

Delivered at: Sydney

Delivered on: 5 April 2006

REPRESENTATION

Applicant: The applicant appeared in person with the aid of a Bengali interpreter

Advocate for the Respondents: Ms A Radich

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application filed on 20 March 2006 is incompetent and is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements, fixed in the sum of $700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG834 of 2006

SZAHH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court on 20 March 2006 for juridical review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 30 January 2003 and handed down on 25 February 2003, affirming a decision of a delegate of the first respondent made on 5 June 2000, refusing to grant the applicant a Protection (Class XA) Visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal, numbered N00/33848.The applicant filed an affidavit sworn on 20 March 2006 in support of his application. 

2. The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicant sets out three grounds of review:

   1.The applicant is a citizen of Bangladesh.  If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.

   2.The Tribunal erred in law in that it did not properly consider the reasonableness of Applicants’ relocation.

   Particulars

   The Tribunal states at pages 19-20 of the decision “…While the Tribunal accepts from his evidence and the same source, that the local animosities might remain, the Tribunal does not accept that such threats if any, can not be evaded by re-location elsewhere in Bangladesh…”

   The Applicant submits that the Tribunal erred in not properly considering the reasonableness of relocation as required by Randhawa.  While some factors were identified and applied (at page 20), the Applicants submit that the Tribunal erred in not applying all the factors, instead relying almost exclusively on Country Information.  The factors such as political volatility and lack of family has not been considered by the Tribunal.

   The Tribunal failed to give practicality to the issue of relocation merely restating the country information.

   3.The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act:

   The Respondent failed to take into account the following relevant considerations into account in the exercise of the power:

   The Tribunal failed to take into account UK Home Office (Bangladesh Assessment issued October 2002) and in particular on the issue of Human Rights found at Part 6 of the Report.  These considerations go to the jurisdictional facts.

3. Under the application heading “Other Court Proceedings”, the applicant entered “None.”  This is incorrect and I have located four previous applications, all of which have been unsuccessful:

   a)SZAHH & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 493 (30 October 2003)

   This is a decision of Raphael FM, where His Honour made the following findings at [13]:

   I have considered the court book and I am satisfied that the Tribunal has come to its conclusions based upon evidence that was available to it which has been clearly set out. Its reasons and conclusions can be seen to have been arrived at from a consideration of the evidence before it. There does not seem to me to be any matter other than one of fact that could give cause for concern about this decision and I therefore find that there are no grounds upon which it can be reviewed under section 39B of the Judiciary Act. I dismiss the application.

   b)SZAHH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 296 (18 March 2004)

   This is a decision of Stone J, where Her Honour found at [10]:

   In summary, the appellant's claims before the Tribunal, before the Federal Magistrate and before me are diffuse and vague. He has not been able to identify any error made either by the Tribunal or by the Federal Magistrate. For that reason this appeal must be dismissed. The respondent Minister has advised that he does not seek costs against the second or third appellants and therefore, a costs order should be made only against the first appellant.

   c)SZAHH & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 135 (10 March 2005)

   This is a special leave application to the High Court heard by Gummow and Kirby JJ where in the transcript of the proceedings, His Honour Gummow J makes the following statement:

   In the Federal Court, a single judge of which dealt with an appeal from the dismissal of a review application by a Federal Magistrate, it was held that no error had been made by the Federal Magistrate or, indeed, by the Tribunal.

   There are insufficient prospects of success to warrant a grant of special leave. Special leave is refused with costs.

   d)SZAHH & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 819 (6 June 2005)

   This is a decision of Scarlett FM, where His Honour found at [19]-[20]:

   The fact is that the applicant has set out no new grounds in his application. The grounds referred to relying as they do on pronouncements relating to formal logic are little more than meaningless and gibberish. The fact is that this application is an abuse of process. There are no new grounds. The applicant has already applied for a review of the decision and has been unsuccessful after a hearing by the Federal Magistrates Court. He has appealed against this decision and has been unsuccessful after a hearing by the Federal Court. He has sought special leave to appeal to the High Court of Australia and the High Court has decided that he is not to be granted that leave. All that the applicant has done is filed another application in an attempt to start the whole circular process again. There is no merit to this application.  It is, as I said, an abuse of process as it is nothing more than an attempt by the applicant to create further delay by misuse of the Court proceedings.

   The application is dismissed.

4. When the applicant was asked if these previous cases concerned him, he confirmed that they did but that he had failed to refer to them in his current application.

5. I agree with the reasoning of Scarlett FM in that all the applicant has done is filed another application in an attempt to start the whole circular process again.  The applicant has not attempted to raise any new ground of review that was not been put before the courts on previous occasions.  This is nothing more than an attempt by the applicant to further delay finality by misusing the Court’s processes and is clearly an abuse of process.

6. The Tribunal decision was handed down on 25 February 2003.  In the current application under the heading “Date when notification of the decision was received by the applicant”, was initially completed as “28 February 2006”.  This has been crossed out and “27 February 2003” is now hand-written instead.  The application is signed by the applicant and dated 20 March 2006. 

7. Under r.10.01(2) of the Rules, the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth), which has repealed the Court’s previous broader jurisdiction under s.483A of the Act and introduced a new s.476. At the same time, the amendments to the Act introduced r.44.11(a) to the Rules, where the Court may dismiss an application at the first Court date on an interlocutory basis with specific reference to r.44.12, which states:

   (1) At a hearing of an application for an order to show cause, the Court may:

   (a)     if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or

   (b)     …

   (c) …

   (2)To avoid doubt, a dismissal under paragraph 1(a) is interlocutory.

8. I note that this power should be exercised cautiously and only in the appropriate circumstances. In this case, there is an incontestable absence of jurisdiction due to the multiple times this applicant has been before the courts as referred to above at [3]. The Federal Magistrates Court, the Federal Court and the High Court have determined that there is no jurisdictional error in the Tribunal decision. Although none of the courts have expressly made the statement, that decision is a privative clause one.

9. The other significant problem facing the applicant is in relation to the time limit, as these proceedings were filed under the Act as altered by the Migration Litigation Reform Act and so places this application within the operations of amended s.476. This means that the time limit provided under s.477(1) of the Act applies and an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”. The Court has power under s.477(2) of the Act “to extend that 28 day period up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is “satisfied that it is within the interest of the administration of justice to do so.”

10. The application does not seek an extension of time.  I believe that even if the applicant had been properly informed in the preparation of his application, he would not benefit from the transitional time limit extension.  The decision of the Tribunal was made prior to the introduction of the amendments conferred by the Migration Litigation Reform Act, which commenced on 1 December 2005.  The transitional period with extension expired 84 days from the commencement date of the amended provisions, on Thursday 23 February 2006.  This application was not filed until 20 March 2006, which is well outside the operation of the transitional provisions and is clearly incompetent.

11. I note that no affidavit explaining the delay has been filed

12. Consequently, the application filed on 20 March 2006 must be dismissed on the ground that it is an abuse of process.  Under the provisions of Migration Litigation Reform Act it is also incompetent.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  24 April 2006