SZAUB v Minister for Immigration
[2006] FMCA 733
•22 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAUB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 733 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of judicial review application as incompetent – RRT decision previously found to be free from any jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.474, 477 Migration Litigation Reform Act 2005 (Cth) |
| SZAUB v Minister for Immigration [2004] FMCA 633 SZAUB v Minister for Immigration [2004] FCA 1468 |
| Applicant: | SZAUB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2800 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 22 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Goodman Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent.
No further application by this applicant for review of the decision of the Refugee Review Tribunal made on 21 May 2003 shall be accepted for filing in this Court, except by leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of an incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2800 of 2005
| SZAUB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion by the first respondent of which notice was given on 17 May 2006. By that motion the Minister seeks the summary dismissal of a judicial review application filed on 30 September 2005. That application sought judicial review of a decision of the Refugee Review Tribunal (“the RRT”) made on 21 May 2003. Relevant background facts, including the litigation history in this matter, are adequately set out in the Minister's written submissions filed in support of the motion. The litigation history is also set out in the affidavit of Ben Alexander Cramer filed on 17 May 2006. I receive that affidavit as evidence in support of the motion. I adopt as background for the purposes of this judgment paragraphs 3 to 10 of the Minister's written submissions:
The applicant, a national of Bangladesh, entered Australia on 29 March 2002. On 23 April 2002, the applicant applied for a protection visa which was refused by a delegate of the Minister on 19 June 2002. The RRT affirmed the decision of the delegate on 21 May 2003 ("the Decision") [Aff.p.8]. The applicant applied to the Federal Magistrates Court for review of the RRT’s decision, and that application was dismissed with costs by Lloyd-Jones FM on 24 September 2004 [Aff.p.38]. The applicant then filed a Notice of Appeal from the orders made by Lloyd-Jones FM in the Federal Court of Australia and, on 8 November 2004, that appeal was dismissed by Branson J [Aff.p.56].
The applicant then filed an application for special leave to appeal to the High Court on 30 November 2004 [Aff.p.63], and on 8 September 2005, that application was dismissed by Hayne and Callinan JJ [Aff.p.68].
The RRT’s decision
The RRT essentially rejected the applicant's claims because of the view it took as to the applicant's credibility. It also found that the applicant would be able to access justice through the Courts in Bangladesh in relation to allegedly false cases filed against him [Aff.p.25-32].
LITIGATION HISTORY: Previous Judicial Review Proceedings
The Decision has been the subject of previous proceedings instituted by the applicant. This is the fourth set of proceedings instituted by the applicant.
Federal Magistrates Court Application: SZ1098/2003
On 17 June 2003 the applicant filed an application in the Federal Magistrates Court seeking review of the RRT decision [Aff.p.34]. On 17 August 2004, Lloyd-Jones FM ordered that the application be dismissed with costs [Aff.p.39]. His Honour held (at [38]) that there had been no failure by the RRT to comply with its obligations under the Migration Act 1958 (Cth) (“the Migration Act”). Nor was Lloyd‑Jones FM satisfied that either actual or apprehended bias had been established (at [43]). His Honour concluded that no denial of procedural fairness or jurisdictional error had been demonstrated (at [46]).
Federal Court Proceedings N1480/2004
On 11 October 2004 the applicant filed a Notice of Appeal in the Federal Court [Aff.p.53]. The Notice of Appeal contained broad allegations which were not properly particularised and which might be described as "boiler plate" grounds. Branson J noted at [5]-[7] of her Honour's reasons that the applicant's written submissions in support of the appeal bore little, if any, relationship to the decision under review and could not be given a sensible meaning. After considering the reasons of the Federal Magistrate and the RRT, her Honour concluded that the Federal Magistrate was plainly right in concluding that no error of jurisdiction affected the RRT’s decision (at [11]). Accordingly, Branson J dismissed the appeal with costs.
Application for Special Leave to Appeal to the High Court: S466/2004
On 30 November 2004 the applicant filed an application in the High Court of Australia for special leave to appeal from the whole of the judgment of Branson J [Aff.p.63]. On 8 September 2005, that application was dismissed by Hayne and Callinan JJ. Hayne J, who gave the reasons of the court, held that the RRT’s decision appeared to be "entirely orthodox and untainted by any discernible error" and that the application would not enjoy any prospect of success [Aff.p.67].
The Federal Magistrates Court Proceedings: SYG2800/2005 – The Present Application
The present application, which seeks review of the RRT’s decision, was filed in the Court on 30 September 2005.
The Minister's motion seeks summary dismissal pursuant to rule 13.10 of the Federal Court Magistrates Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on several bases. These are that the proceeding is frivolous or vexatious or that the proceeding is otherwise an abuse of process. Alternatively, the motion asserts that the proceedings are barred on the basis of the doctrine of res judicata and further, or in the alternative, that the applicant is estopped from bringing his application on the basis of the doctrines of issue estoppel and Anshun estoppel.
The judicial review application before me asserts jurisdictional error in fairly general terms. The applicant filed written submissions in opposition to the Minister's motion. In those submissions the applicant set out what he sees as the flaws in the RRT decision. In his oral arguments the applicant asserted that the RRT gave no proper consideration either to his claims or to his documents. He conceded in argument, however, that he had advanced these, or similar arguments, in the earlier judicial review proceedings. The position is that the RRT decision has been considered in three earlier judicial proceedings.
In SZAUB v Minister for Immigration [2004] FMCA 633, Federal Magistrate Lloyd‑Jones rejected an earlier judicial review application. At paragraph 46 of his decision Lloyd‑Jones FM found that an examination of the errors alleged found that none were apparent. His Honour also found no denial of procedural fairness. I take the effect of paragraph 46 of his Honour's judgment to be that he found no jurisdictional error in the decision of the RRT.
An appeal against that decision was rejected by Branson J in SZAUB v Minister for Immigration [2004] FCA 1468. At paragraph 11 of her judgment Her Honour said:
I have carefully considered the reasons for decision of the Federal Magistrate as well as the reasons for decision of the Tribunal. Having done so, it is apparent that the Federal Magistrate gave careful consideration to the decision of the Tribunal. His Honour, in my view, was plainly right in concluding that no error of jurisdiction affected that decision.
An application for special leave to appeal to the High Court from Her Honour's judgment was unsuccessful.
In my view, the result of the earlier judicial review proceedings and the appeals is that the RRT decision has been conclusively found, for the purposes of further proceedings in this Court, to be free from jurisdictional error. In consequence, s.474 of the Migration Act removes any further jurisdiction from this Court. I find that I have no jurisdiction to entertain the present judicial review application any further. It is unnecessary to consider the grounds for dismissal advanced in the Minister’s motion.
The judicial review application should be dismissed as incompetent, and I will so order.
The motion by the Minister also seeks an order that the applicant not be permitted to institute any further judicial review proceedings in this Court relating to the same RRT decision without leave of the Court. I have not considered whether the application is an abuse of process. However, it is apparent that since 1 December 2005 the effect of the Migration Litigation Reform Act 2005 (Cth) would be that any further judicial review application in respect of the same RRT decision would be out of time. It is also clear from s.477 of the Migration Act as it now stands that the Court would have no jurisdiction to extend the time limit.
In these circumstances it is, I find, appropriate to make an order in similar terms to the order sought in the motion. I will order that no further application by this applicant under the Migration Act to review the decision of the Refugee Review Tribunal made on 21 May 2003 is to be accepted for filing in this Court except by leave of the Court.
On the question of costs, the Minister seeks an order fixed in the sum of $3,000 on a party/party basis. I understand this represents about 75 per cent of the Minister's actual costs. I am satisfied that costs of not less than $2,500 have been reasonably and properly incurred by the Minister to this point when considered on a party and party basis. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 May 2006
3