SZAPF v Minister for Immigration
[2005] FMCA 1967
•14 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAPF v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1967 |
| MIGRATION – Visa – protection visa – application for review of a decision of the Minister’s delegate – primary decision. PRACTICE & PROCEDURE – Where application for review of RRT decision previously heard by Federal Magistrates Court – where appeal dismissed by Federal Court for non-appearance by the appellant – where applicant applied for special leave to appeal to the High Court of Australia – application for special leave dismissed by High Court – abuse of process – res judicata. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.476 |
| Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 referred to Rogers v R (1994) 181 CLR 251 referred to S1689/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1625 followed SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 684 referred to SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 802 referred to SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316 referred to Walton v Gardiner (1993) 177 CLR 379 referred to |
| Applicant: | SZAPF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3199 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 December 2005 |
| Date of Last Submission: | 14 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Ms Mak Clayton Utz |
ORDERS
That the Interlocutory application filed by the Respondent on
5 December 2005 is granted.
The application for judicial review of the notification of the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs made on 29 May 2000 (“the delegate’s decision”) and of the delegate’s decision is summarily dismissed as an abuse of process.
The Applicant is restrained from filing any further application for judicial review of the delegate’s decision or the decision of the Refugee Review Tribunal made on 28 March 2003 (“the Refugee Review Tribunal decision”) without leave of the Court.
No application for judicial review of the delegate’s decision or the Refugee Review Tribunal decision is to be accepted for filing at any Registry of the Court without leave of the Court.
The decision of the Registry to waive the filing fee for the application for judicial review is revoked.
The Applicant is to pay the Respondent’s costs in the sum of $1,000.00 together with Court costs of $288.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3199 of 2005
| SZAPF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application filed by the applicant for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs. The delegate's decision was made on
29 May 2000 and was notified to the applicant by a letter that day.
It is an application for review of a primary decision because it is an application for review of the actual delegate's decision and not review of the Refugee Review Tribunal's decision. It is an application that cannot succeed.
Under s.476 of the Migration Act the Court does not have power to review a primary decision. This is a primary decision because it has been reviewed by the Refugee Review Tribunal. Not only has it been reviewed by the Refugee Review Tribunal, but the applicant has made application to this Court for review of the decision of the Refugee Review Tribunal and that application was heard and dismissed on
8 October 2004. The applicant appealed against that decision on
28th October and on 11 November 2004 that appeal was dismissed. The reference to the earlier Federal Magistrates Court proceedings is SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 684.
The applicant then sought special leave to appeal to the High Court of Australia. He did that on 24 November 2004 and on 6 October this year that application was dismissed by the High Court. The reference is SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 802. On 2 November the applicant then filed this application.
The application does not mention any of the earlier proceedings. It is, regrettably, an application to rehear a matter that has already been heard and decided. It is opposed by an interlocutory application filed by the Minister's solicitors. The application alleges that this is, inter alia, an abuse of process. Quite clearly, res judicata would apply because the matter has already been heard on its merits and dismissed and it has been appealed and the appeal has been dismissed, although in fairness the appeal was not heard on its merits, and an application for special leave to appeal to the High Court of Australia has been unsuccessful.
The judgment of the High Court, per Gummow and Kirby JJ, given by Gummow J says that:
We have reviewed the applicant's written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. There are no prospects of success in any appeal to this Court from the decision of Moore J. Accordingly, special leave to appeal is refused.
The applicant today has said that he cannot return to Bangladesh and he has cited events that have occurred in the last few weeks and the last month which have involved actions by supporters of the BNP, one of the parties there, and it has involved bombings and murders, regrettably, of Judges, amongst other people. Unfortunately, that is, at best, an application for a merits review which cannot sustain an application to reopen these proceedings. As I said, res judicata applies and the situation of Anshun estoppel clearly applies. The applicant has not brought to the attention of the Court any special circumstances which would justify the exercise of the court’s discretion not to apply the principles of Anshun estoppel.
As Her Honour Barnes FM said in S1689/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1625 at [59]:
The decision of the delegate could and should have been challenged when the Tribunal's decision was challenged. Were the matter to proceed to a final hearing the application should fail on Anshun estoppel principles.
Her Honour referred in that case, and it has been put to me today, to the decision of SZGKR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1316 at [25] where Smith FM said:
There could be no entitlement to have the Minister or her delegate resume or complete any decision-making on the applicant's visa applications since, in my opinion, under the scheme of decision-making in the Migration Act the Minister became functus officio in relation to her powers of decision in relation to the protection visa applications after an application for merits review had been made and determined by the Tribunal.
I am satisfied that these proceedings should be dismissed under r.13.01(c) as an abuse of process. In this instance, as in the decision of S1689/2003 (supra), there has been the filing of repeated applications with respect to the same subject matter even though not specifically in relation to the decision of the delegate. The applicant has had an opportunity in the course of those prior proceedings to raise any complaints regarding the delegate's decision. That would have been the appropriate place for such complaints to be raised, but the applicant did not do so.
I have had regard to the fact that the proceedings may said to be unjustifiably vexatious and oppressive to the respondent. To allow proceedings of this nature to be continued would bring the administration of justice into disrepute. I refer to Walton v Gardiner (1993) 177 CLR 378 at [393], Rogers v R (1994) 181 CLR 251 at [255]-[256], and Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 at [323]-[326] inclusive. The Court must have regard to the underlying public interest that there be finality in litigation.
As Barnes FM said in S1689/2003:
Although the respondent in this instance is not a private party, nonetheless, a party should not be vexed over and over in relation to what is in essence the same matter.
It is quite clear to me that the applicant has brought these proceedings in order to stay in Australia, which he frankly admitted he wants to do. I have sympathy with his desire to remain in this country, but by bringing these proceedings what is taking place is an abuse of process. Accordingly, the application for review must be dismissed.
In my view, this matter must be dismissed with costs. Costs are payable on an indemnity basis. There is an application for costs in the sum of $1,000.00. To my mind that is appropriate.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 12 January 2006
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