SZASY v Minister for Immigration
[2005] FMCA 1288
•26 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZASY v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1288 |
| MIGRATION – RRT – Bangladeshi applicant – previous judicial review proceedings – estoppel and abuse of process – application summarily dismissed – direction precluding further applications without leave. |
| Migration Act 1958 (Cth), ss.471, 474(2), 477(1A), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Blair v Curran (1939) 62 CLR 464 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZASY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1074 SZASY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 440 SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 |
| Applicant: | SZASY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1567 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 26 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr B Cramer |
| 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 first respondent’s costs in the sum of $3,000.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 28 May 2003 reference N01/38823 or for review of the decision of the delegate of the first respondent dated 10 May 2001 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 1567 of 2005
| SZASY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The substantive application in this matter invokes the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) to give relief by way of judicial review under s.39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal dated 2 May 2003 and handed down on 28 May 2003. The Tribunal affirmed a decision made by a delegate of the Minister refusing to grant a protection visa to the applicant.
The applicant had arrived in Australia in April 2001 on a temporary visa from his country of nationality, Bangladesh. He applied for a protection visa on 3 May 2001, and the delegate refused that application on 10 May 2001.
The circumstances which he put forward in support of his refugee application, and the reasons of the Tribunal for affirming the decision to refuse it, are sufficiently found in the judgments to which I shall refer below. In short, the Tribunal did not believe that the key events claimed by the applicant had occurred.
I have before me today an application by the Minister for the summary dismissal of the application under Federal Magistrates Court Rule 13.10 based on the following litigation history.
The applicant first challenged the Tribunal's decision in an application filed in this Court on 11 June 2003. Grounds for review were broad and imprecise. They were amplified by written and oral submissions by the applicant when he appeared before Barnes FM. Her Honour gave extensive reasons for dismissing the application (see SZASY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 440). For present purposes, the significant finding made by her Honour is found at the end of her Honour's judgment where she held:
In all the circumstances, no jurisdictional error in respect of which a remedy should sound is apparent. The application must therefore be dismissed.
On 8 July 2004 the applicant appealed to the Federal Court of Australia, repeating general claims of error by the Tribunal, including natural justice and bias. The appeal was determined by Wilcox J, who published reasons on 12 August 2004 (see SZASY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1074). His Honour's judgment carefully examined grounds of appeal raised by the applicant, and reached the following conclusions:
17. A number of grounds of review were argued before the Magistrate. Those grounds differ to some extent from the grounds to which I have referred. I have considered what the Magistrate said about the grounds raised before her. I see no basis upon which her reasoning about those grounds may justifiably be criticised.
18. Before coming into court today, I carefully considered the Tribunal's reasons. I anticipated that the appellant would not be legally represented. I see no basis for attributing to the Tribunal any jurisdictional error.
19. The situation in this case is similar to the situation in many cases, in that the appellant is unhappy about the factual findings of the Tribunal. However, it is not for this Court to review the Tribunal's findings of fact. As I have pointed out to the appellant, this Court can intervene only if it is satisfied that the Tribunal has committed an error which falls into the category of a jurisdictional error. I endeavoured to explain to the appellant what that meant. He said he understood. The concept of jurisdictional error includes failure to give consideration to a relevant circumstance. If I had thought that the Tribunal had fallen into that error, in this case, then I would have upheld the appeal. However, for the reasons I have given, I do not think that the Tribunal's failure to deal with the post 2000 political situation in Bangladesh was a failure to consider a relevant circumstance. I think all the other matters raised by the appellant, including the authenticity of the documents, are matters entirely of fact. This being the case, I have no alternative but to dismiss the appeal.
It is plain, in my view, that the judgments of both Barnes FM and Wilcox J made findings against the applicant on the issue whether the Tribunal's decision was affected by jurisdictional error. Their findings implicitly addressed the issue identified in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, which determines whether powers of judicial review under s.39B of the Judiciary Act 1903 (Cth) are available to both courts in relation to the Tribunal’s decision. Powers are not available if the Tribunal’s decision is held to be a “privative cause decision” within s.474(2) of the Migration Act, and it is such a decision if it is found not to be affected by jurisdictional error. In my opinion, the effect of a previous judicial determination on this issue is that an issue estoppel will preclude the applicant in any fresh proceeding from denying that the decision which he seeks to challenge is a “privative clause decision” for which relief is barred under s.471 of the Migration Act, and that the time limit under s.477(1A) on judicial review applications now renders his present application incompetent (see Blair v Curran (1939) 62 CLR 464).
The applicant sought to appeal from Wilcox J's judgment to the High Court of Australia and made application for special leave to appeal on 1 September 2004. The application was refused by Gleeson CJ and Gummow J on 26 May 2005. In pronouncing the orders of the Court, the Chief Justice recognised that the Federal Magistrates Court had dismissed the application “because no jurisdictional error in the decision of the Tribunal had been shown”. He said that there were insufficient prospects of success in any appeal to the High Court from the Federal Court to warrant a grant of special leave.
As I have indicated, shortly after that decision the applicant commenced the present application. It seeks relief against the Tribunal and Minister, including a declaration that the decision of the Tribunal was "not a privative clause decision" and orders by way of declaration or writs which are equivalent to the relief previously sought.
The Minister has filed an objection to competency in the proceeding which raises by way of defence to the application the provisions of
s.477(1A) which, as I have indicated, imposes a 28-day time limit on a judicial review proceeding in relation to a "privative clause decision". As I have explained, the findings which I have identified above in the judgments of Barnes FM and Wilcox J have created an issue estoppel against the applicant in relation to that issue. I therefore consider that the present application is bound to fail on the ground raised by the Minister's objection to competency. On the above analysis, the Court has no discretion to allow new matters to be litigated in fresh proceedings relating to the Tribunal’s decision.
Even if the Court might have such a discretion in the present case under principles of Anshun estoppel, the material filed by the applicant in response to the Minister's application does not indicate any ground of judicial review which the applicant now seeks to raise which has not previously been raised or which could not reasonably have been raised in the previous litigation, nor has he pointed to any special circumstances, which might conceivably warrant the bringing of fresh proceedings to raise new points. The principles of Anshun estoppel would therefore also inevitably operate against the applicant if his matter had proceeded to a hearing (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).
My above conclusions and the history of the matter reveals to me clearly that the continuance of the present proceeding would be an abuse of process, and that it is appropriate for this Court to exercise its power under r.13.10(c) to dismiss the proceeding. When exercising that discretion I have taken into account the applicant's submission to me explaining the continuance of his litigation by reference to what he feels is the risk to his life if he has to return to Bangladesh. However, in my view, the principles underlying the principles of estoppel based on the need for finality in litigation are as applicable to litigation concerning refugee decisions as to any other litigation in Australian Courts. In this case, I consider they should be given effect to. I shall therefore make the order of dismissal sought in the motion.
The Minister’s motion also seeks orders directing the Registry of this Court not to accept further applications seeking to challenge the Tribunal's decision without first obtaining the leave of the Court. I consider in the circumstances shown in the documents before me that it is appropriate to give that direction. The Court’s power to do so has been upheld by Jacobson J in SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 at [29].
In recent weeks it has been apparent that the documents which have been used as precedents by unrepresented applicants in this Court have been modified to get around such directions, by framing fresh proceedings as a challenge to the delegate’s decision which was taken on appeal and affirmed by the Tribunal. In my opinion, such applications are equally an abuse of the process of Court, and represent a continuing vexation to the Minister from which she should be protected. I consider in the present case that it is appropriate for me to frame my direction broadly so as to encompass all challenges to the administrative decisions and processes which led to the Tribunal’s decision which ultimately determined the applicant’s visa application.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 9 September 2005
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