SZAOT v Minister for Immigration - [2005] FMCA 1726

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAOT v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1726

MIGRATION – RRT decision – previous judicial review application and appeals – new application dismissed as an abuse of process.

Federal Magistrates Court Rules 2001, rr.13.10(c), 21.02(2)(a)
Migration Act 1958 (Cth), ss.91R, 474(1), 483A

Blair v Curran (1939) 62 CLR 464
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZAOT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 520
SZAOT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1473
SZAOT v Minister for Immigration [2004] FMCA 217
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

Applicant:

SZAOT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2316 of 2005

Judgment of:

Smith FM

Hearing date:

14 November 2005

Delivered at:

Sydney

Delivered on:

14 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

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 first respondent’s costs on an indemnity basis in the sum of $3,100.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 23 April 2003 reference N02/42544 or for review of the decision of the delegate of the first respondent dated 12 April 2002 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

SYG2316 of 2005

SZAOT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this proceeding is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 April 2003 and handed down on 23 April 2003. The Tribunal affirmed the decision of a delegate made on 12 April 2002 which refused to grant a protection visa to the applicant.
The application was given a first court date on 27 September 2005. On that occasion the applicant appeared and was assisted by a Bengali interpreter. I set the proceeding down for hearing today of a foreshadowed interlocutory application by the Minister for the summary dismissal of the application. The Minister’s application was brought on the basis that the principal application was an abuse of the process of the Court due to a previous history of litigation by the applicant in relation to the same decision of the Tribunal under the same jurisdiction of the Court.
I gave directions requiring the Minister’s solicitors to serve their application and an outline of submissions on the applicant, and I am satisfied that he received those documents in sufficient time to prepare for today’s hearing. The Court was not able to arrange a Bengali interpreter to attend in person, but a competent Bengali interpreter was obtained using the telephone interpreting service, and the applicant has made his submissions to me today using that service. I have explained to him my decision in the matter.
The history of the matter is as follows.
The applicant is a young man who is a Bangladeshi national. He arrived in Australia in November 2001 and applied for a protection visa on 12 December 2001. He attended a hearing by the Tribunal on 17 March 2003. In its decision, the Tribunal addressed his claims to fear persecution as a result of his Ahmadi beliefs, and said that it was not satisfied that the applicant was an Ahmadi. He had not made any meaningful contact with the local association, and had no credentials from the movement, either from its Bangladeshi or Australian branches. Moreover, the Tribunal concluded that even if he were an Ahmadi it was not satisfied that he had a well‑founded fear of persecution, on the basis of country information which showed that Ahmadis in Bangladesh do not suffer discrimination amounting to persecution. The Tribunal said: “I am of the firm view that the applicant has fabricated the claims of danger facing him in Bangladesh”.
On 12 May 2003, the applicant filed an application for judicial review of the Tribunal’s decision in this Court invoking the same jurisdiction as the present application. A variety of points were raised by an application, an amended application and a written outline of submissions, and the applicant also appeared before Raphael FM. His Honour dismissed the application on 1 April 2004 (see SZAOT v Minister for Immigration [2004] FMCA 217). His Honour said:
[15]The Tribunal’s decision in this case was essentially made upon the finding of credibility and then certain findings of fact in which the Tribunal accepted independent country information that had been discussed with the applicant. The Tribunal weighed up that information against the criteria in the Migration Act and, in particular, the criteria of serious persecution found in s.91R. It concluded that the complaints made by the applicant, even if they were true, would not amount to persecution and, therefore, it was unable to be satisfied that the applicant was a person to whom this country owed protection obligations.
[16]Those findings are the very essence of the Tribunal’s duty. The Tribunal is not obliged to refer to or address all the material before it; MIMA v Singh (2000) 98 FCR 569; Applicant S70 of 2003 v MIMIA [2004] FCA 84 per Hely J at [45]. The Tribunal’s reasons may be short but they are clear and they bear direct relevance to the matters before it.
[17]In all the circumstances, I am unable to see any grounds upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it came to its decision in this case. The application shall be dismissed and the applicant shall be ordered to pay the respondent’s costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
His Honour’s reference to jurisdictional error must be understood, in my opinion, as a finding addressing the issue posed by s.474(1) as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Relief is barred unless the Court is satisfied that the Tribunal decision is affected by jurisdictional error. In my opinion, an issue estoppel arises due to Raphael’s FM finding on that issue. The same issue is raised in the present proceeding by a notice of objection to competency filed by the Minister. In my opinion, the judgment of Raphael FM provides an absolute answer to the present application, and its prospects are therefore hopeless (see Blair v Curran (1939) 62 CLR 464 at 531-2).
The applicant’s rights in relation to judicial review were also the subject of appeal by the applicant to the Federal Court, where Allsop J on 12 November 2004 dismissed the appeal (see SZAOT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1473). His Honour reviewed a variety of further arguments by the applicant in a notice of appeal, an amended notice of appeal and supplementary submissions. His Honour found no error in the Tribunal’s decision and dismissed the appeal.
On 8 December 2004, the applicant filed an application for special leave to appeal to the High Court of Australia. On 5 August 2005, McHugh and Heydon JJ published the reasons of the Court for refusing to grant special leave (see SZAOT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 520). Their Honours said:
The applicant’s special leave application complained of breaches of the rules of natural justice, jurisdictional error, a failure to take into account relevant considerations, procedural errors and errors of law. There is no ground for doubting the correctness of the decision of the Federal Court.
An appeal would have no prospect of success. The application must be dismissed.
Within a month of their Honours’ order, the applicant commenced his present proceeding. His application makes general allegations of jurisdictional error without giving any particulars suggesting that any of them have substance. It is also unclear to me whether any of them have not previously been raised by the applicant in the course of his previous litigation. In my opinion, the points raised by the application are all points which might have been previously raised, assuming they had any merit. If there were not an absolute bar in the present proceeding on principles of issue estoppel, then principles of Anshun estoppel would, in my opinion, render the present application hopeless (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).
The applicant’s submissions to me today were that he felt he did not get natural justice before the Tribunal, and that if he went back he would not be able to survive because he feels there is no security for him in Bangladesh. However, he was not able to identify for me a new point raising a ground of jurisdictional error which he had not previously argued. Nor, in my opinion, did he raise anything suggesting any special circumstances which could have allowed further litigation in his matter.
For the above reasons, I consider that the present application is doomed to failure and is also an abuse of process due to the applicant having previously fully exhausted his rights to judicial review in relation to decisions on his application for a protection visa. I consider that this should have been apparent to him before he commenced his present proceeding, and that it is therefore appropriate to make an order as sought by the Minister that costs of the proceeding be awarded against him on an indemnity basis. I also consider that the history I have recounted above, the documents which the applicant has used, and his submissions to me, all suggest that he is likely to continue to file unmeritorious applications in this Court with the object of protracting his eligibility for bridging visas. In the circumstances I think it appropriate for me to frame a broad direction that he should not be permitted to file any further application in this Court concerning his protection visa application without the prior leave of the Court.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 28 November 2005