SZANB v Minister for Immigration
[2007] FMCA 1679
•25 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1679 |
| MIGRATION – Abuse of process – vexatious litigant – application dismissed as no error by Tribunal – costs. |
| Migration Act 1958 (Cth), ss.424A Federal Magistrates Court Rules 2001, r.13.10 |
| SZANB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 387 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Al-Ahmidi v Minister for Immigration and Multicultural Affairs [2000] FCA 1081 |
| Applicant: | SZANB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1999 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 21 September 2007 |
| Date of last submission: | 21 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms M. Mafessanti of Clayton Utz |
ORDERS
The application is dismissed generally and pursuant to Rules 13.10(b) and (c).
Any proceeding instituted by the applicant in this Court may not be continued without the leave of the Court.
The applicant may not institute a proceeding in this Court without the leave of the Court.
The Court directs that without the prior leave of the Court, the applicant is not to file, and the Registry of the Court is not to accept for filing, any further application for review of:
(a)the decisions of the delegate dated 21 March 1997 (File No: 96/003441) and 14 February 2002 (File No: CLF 2001/29852);
(b)the decisions of the Refugee Review Tribunal dated 1 February 1999 (Reference: N97/14990) and 27 March 2003 (Reference: N02/41843).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1999 of 2007
| SZANB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 28 June 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 27 March 2003 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The first respondent submits that:
(a)the application should be dismissed as an abuse of process in light of the applicant’s litigation history;
(b)further, and in the alternative, the applicant is barred by res judicata and/or is estopped from bringing these proceedings;
(c)further, and in the alternative, there is no jurisdictional error in the decision of the Tribunal;
(d)further, and in the alternative, if the Court finds that the decision of the Tribunal is affected by jurisdictional error, then the Court should refuse the grant of relief on the basis of delay.
The applicant’s litigation history is extracted from the affidavit of Miriam Mafessanti, sworn on 23 July 2007, as follows:
DATE
EVENT
9 May 1996
Applicant arrived in Australia
11 July 1996
Application for protection visa lodged
21 March 1997
Delegate rejected the application for a protection visa
15 April 1997
Application for review lodged with the RRT
1 February 1999
RRT affirmed decision of the delegate
2 March 1999
Application for review to the Federal Court
24 June 1999
Federal Court dismissed the application
8 August 2001
Second application for protection visa lodged
14 February 2002
Application refused by delegate of the first respondent
28 February 2002
Application for review lodged with the RRT
27 March 2003
RRT affirmed decision of the delegate No.2/41843
2 May 2003
Application for judicial review filed with the Federal Magistrates Court (SYG 742/2003)
18 June 2004
Application for judicial review dismissed by Driver FM: SZANB v MIMIA [2004] FMCA 387
7 July 2004
Application for Leave to Appeal filed with the Federal Court of Australia (NSD 1061/2004)
29 September 2004
Appeal dismissed by Justice Jacobson: SZANB v MIMIA [2004] FCA 1295
21 October 2004
Application for special leave to appeal in the High Court of Australia (S417/2004)
5 August 2005
Application for special leave to appeal dismissed by McHugh and Heydon JJ
24 August 2005
Application for judicial review of the delegate’s decision filed with the Federal Magistrates Court. Applicant granted pseudonym SZHAC (SYG 2340/2005).
28 April 2006
Application summarily dismissed by Nicholls FM: SZHAC v Delegate of the Minister for Immigration & Anor [2006] FMCA 854
28 June 2007
Current proceedings commenced; application for judicial review of RRT’s decision filed (SYG 1999/2007)
Issues for determination
The issues before the Court may be summarised as follows:
·Whether the application by the applicant is an abuse of the process of this Court and/or vexatious;
·Whether the applicant has a reasonable prospect of successfully prosecuting his claim.
In his application, the applicant set out the following grounds:
(1)The decision of the Tribunal is not a valid decision within the meaning of Migration Act 1958. The decision breached s.424A of the Act.
(2)The decision of the Tribunal now falls within the application of High Court decision Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14.
Findings of the Court as to the grounds in the application
Ground one asserts a breach of s.424A. An applicant must prove their case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. No particulars or submissions were put to establish this ground; ground one is rejected.
Ground two seeks to rely on the decision in Bodruddaza vMinister for Immigration and Multicultural Affairs [2007] HCA 14. That case concerned the invalidity of s.486A of the Migration Act 1958 (Cth) (“the Act”) and is of no relevance to these proceedings. Ground two is rejected.
The applicant raised matters in his written submissions. The first is the finding by the Tribunal that “it would be reasonable to expect him to be able to relocate” (Decision p.20, para.3). The Tribunal concluded that, based on the country information it referred to on pp.13 and 16, there were many other parts of the country in which it would be reasonable for him to relocate. The Tribunal set out its reasons for placing little importance on a newspaper cutting as an indicator that the applicant was known in places other than the Gazipur district. It is a matter for the Tribunal which evidence it accepts or rejects: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
The applicant referred to the decision in Al-Ahmidi v Minister for Immigration and Multicultural Affairs [2000] FCA 1081 that for relocation to be reasonable, “there must be satisfaction of the basic norms of civil, political and socio-economic human rights in that relocation”. It is clear from the decision of the Tribunal that it did not consider that relocation would deprive the applicant of such human rights. As stated in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [24]:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
Here the Tribunal considered the particular circumstances of the applicant and the impact of relocation (Decision pp.20.5 – 21.3) and concluded that it would be reasonable to expect him to be able to relocate. That was a finding of fact properly open to the Tribunal on the material before it and is not open to review.
The applicant then submitted that it was contradictory for the Tribunal to accept that violent activities and attacks “are part and parcel of a pattern of behaviour in Bangladesh student politics” (Decision p.19, para.1), and then conclude that it had seen nothing to indicate that mere membership of such organisations in Bangladesh would lead to persecution in the Convention sense (Decision p.18, para.3). It is a matter for the Tribunal which evidence it accepts or rejects: Lee (ante). It is for an applicant to prove their case: Prasad (ante). This complaint is rejected.
The applicant then complained about a finding of fact by the Tribunal about why the applicant may fear harm in the future. The Tribunal concluded that his fear came from the fact that he was the key witness to a murder. The Tribunal stated that the applicant gave evidence to that effect (Decision p.21.4). That finding of fact was properly open to the Tribunal and is not subject to review. The Tribunal then found, correctly, that the reason was not a Convention reason. This complaint is rejected.
The applicant then alleged that the Tribunal denied him natural justice because after the Tribunal reached its decision and handed a copy to the applicant, the member did not discuss the decision with the applicant. No such obligation exists in the Act, or elsewhere. This complaint is rejected.
Accordingly, the application is dismissed.
Other findings of the Court
The merits of the application having been dismissed, the issue of res judicata or Anshun estoppel have been overtaken.
Abuse of process
The Court notes that when Federal Magistrate Nicholls dismissed an application for judicial review of the same decision as in this application, His Honour ordered that no further application by the applicant for review of the relevant decisions be accepted for filing without leave of the Court (p.53 of the Affidavit of Miriam Maffessanti, sworn on 23 July 2007). In disregard of the purpose of that order, the applicant filed the current application for judicial review. The Court decides that the proceedings by the applicant have been an abuse of the process of the Court because they seek “to litigate anew a case which has already been disposed of by earlier proceedings”:Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. The application is dismissed pursuant to Rule 13.10(c).
Frivolous or vexatious
The Court determines that the proceeding has been vexatious for the reason that it sought “to litigate anew a case which has already been disposed of by earlier proceedings”:Walton v Gardiner (ante) at 392-393. The application is dismissed pursuant to Rule 131.10(b).
The Court orders:
(a)That the application is dismissed generally and pursuant to Rules 13.10(b) and (c).
(b)That any proceeding instituted by the applicant in this Court may not be continued without the leave of the Court.
(c)That the applicant may not institute a proceeding in this Court without the leave of the Court.
(d)The Court directs that without the prior leave of the Court, the applicant is not to file, and the Registry of the Court is not to accept for filing, any further application for review of:
·the decisions of the delegate dated 21 March 1997 (File No: 96/003441) and 14 February 2002 (File No: CLF 2001/29852);
·the decisions of the Refugee Review Tribunal dated 1 February 1999 (Reference: N97/14990) and 27 March 2003 (Reference: N02/41843).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 25 October 2007
0
8
2