SZAYH v Minister for Immigration

[2005] FMCA 1122

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYH v MINISTER FOR IMMIGRATION [2005] FMCA 1122

MIGRATION – RRT decision – previous unsuccessful judicial review application – res judicata on whether the Tribunal decision was a privative clause decision – application dismissed as an abuse of process.

Federal Magistrates Court Rules 2001, r.13.10(c)
High Court Rules 2004, r.41.10.5
Migration Act 1958 (Cth), ss.474(1), 474(2), 477(1A), 483A

Blair v Curran (1939) 62 CLR 464
SZAFO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1028
SZAFO v Minister for Immigration [2005] FMCA 885
SZAYH v MIMIA [2005] HCA Trans353
SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 4
SZAYH v Minister for Immigration [2004] FMCA 771
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 212 ALR 581
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

Applicant: SZAYH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1545 of 2005

Judgment of: Smith FM

Hearing date: 26 July 2005

Delivered at: Sydney

Delivered on: 26 July 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Ms A Nanson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court. 

2. The applicant must pay the first respondent’s costs in the sum of $2500. 

3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 17 June 2003 reference N02/43000 shall be accepted for filing without prior leave of the Court. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1545 of 2005

SZAYH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 May 2003 and handed down on 17 June 2003. 

2. The application was filed in this Court on 15 June 2005 and has been listed twice for directions before today’s listing. On the last occasion, if not on earlier occasions, the respondent foreshadowed a motion which was listed for hearing today, seeking that the proceeding be dismissed as an abuse of process of the Court under r.13.10(c) of the Federal Magistrates Court Rules 2001 (“the Federal Magistrates Court Rules”). 

3. The respondent has also filed a notice of objection to competency on the basis that the Tribunal’s decision is a “privative clause decision” within s.474(2), so that relief is precluded by s.474(1) and the application is out of time under s.477(1A). It was submitted in support of the present motion that the issue whether the Tribunal decision is a privative clause decision had previously been determined against the applicant by a final decision in this Court, which was upheld on appeal in the Federal Court, and for which special leave to appeal was refused by the High Court. It was submitted that the issue raised by the objection to competency was therefore res judicata against the applicant, that the applicant’s present application is doomed to failure, and that its continuance is therefore an abuse of the process of the Court. 

4. The previous history of the matter appears in the judgment of Driver FM in SZAYH v Minister for Immigration [2004] FMCA 771. In that proceeding, his Honour addressed an application for review invoking the same jurisdiction as is invoked on the present application before me, and in relation to the same decision of the Tribunal and against the same respondent. His Honour dealt with grounds of review which covered the whole gamut of judicial review grounds, and significantly he said as follows:

   11.Because the applicant is self‑represented I have independently considered whether any jurisdictional error is apparent in the decision of the RRT.  In my view, there is none.  It follows that the RRT decision is a privative clause decision and the application must be dismissed. 

   His Honour then made an order on 5 November 2004 dismissing the application with costs. 

5. On appeal from his Honour’s decision, Moore J on 24 January 2005 made orders dismissing the appeal.  He published reasons in a reserved judgment entitled SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 4. His Honour said:

   [15]I have read the reasons for decision of the Tribunal. 

   
   

   I have also read the reasons for judgment of the Federal Magistrate.  It does not appear to me that the Federal Magistrate erred in concluding that the appellant had not demonstrated jurisdictional error on the part of the Tribunal and in rejecting the grounds advanced by the appellant. 

6. The applicant sought special leave to appeal to the High Court from that judgment, and in a determination pursuant to High Court r.41.10.5, Hayne and Callinan JJ dismissed the application for special leave on 26 May 2005.  When publishing the determination in SZAYH v MIMIA [2005] HCATrans 353, Hayne J said:

   There is no reason to doubt the correctness of the decision of the Federal Court and accordingly the applicant’s application should be dismissed. 

7. Within a month of their Honours’ order, the applicant filed his present fresh proceeding in this Court.  His application contains nine unparticularised grounds for review in a form similar to the application which had initiated the proceeding that was dealt with by Driver FM, and indeed all but two of its paragraphs are verbatim reproductions of the earlier application.  The only additional allegation is in paragraph 3: 

   The Tribunal did not observe Migration Act 1958 properly. The Tribunal decision was actual bias.

   However, the issue of bias was dealt with by Driver FM and Moore J. 

8. The other paragraph which is novel does not plead a ground of judicial review, but says: 

   I refer to support my review application recent High Court case Plaintiff  S157/2002 v Commonwealth of Australia. 

   This is a reference to the High Court case which allows jurisdiction in this Court to grant relief, but only after a finding is made that the Tribunal decision is not a privative clause decision by reason of being affected by jurisdictional error.  As I have indicated above, that issue has been squarely addressed and decided against the applicant by the judgment of Driver FM. 

9. The applicant has answered the contentions of the Minister with a document entitled “Applicant’s Argument For Competency”, which is a reproduction of arguments seen by the Court in other proceedings.  It is unnecessary for me to give detailed attention to its contentions, in view of my opinion that the applicant faces a res judicata on the issue of whether the Tribunal decision is a privative clause decision (c.f. Blair v Curran (1939) 62 CLR 464 at 531‑532, applied by me in SZAFO v Minister for Immigration [2005] FMCA 885 which was approved by Wilcox J in SZAFO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1028). However, I note that I have read this document, and it does not appear to raise any ground which could not reasonably have been raised by the applicant in the previous proceeding. Even if there is not a strict res judicata, the applicant has not been able to point to any new ground which he should be allowed to pursue in fresh proceedings under principles of Anshun estoppel (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).

10. When today the applicant’s attention was drawn to the problems facing his attempt to re‑litigate issues previously pursued, he could not present any argument which shows any prospects of overcoming the outcome of the previous litigation.  His argument has been that he has more documents which he wants a chance to present again to the Tribunal, and he promises that if the Court sends his case back he will accept the outcome before the Tribunal.  The problem with this argument is that it depends upon his finding power in this Court to send the case back. 

11. For the reasons given above, I consider that he has no prospects at a hearing on his application. It is manifestly hopeless, and is an abuse of process due to the previous judgments against him. I consider it appropriate therefore to dismiss the application under r.13.10(c) of the Federal Magistrates Court Rules.

12. I also consider that it is appropriate for me to direct the Registry not to receive any further applications for judicial review in relation to the present decision of the Tribunal without first obtaining the leave of the Court.  The Court’s power to make such an order was upheld by Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 212 ALR 581 at [29].

13. In the present case, the appropriateness of making such a direction is apparent from the duplication of applications which I have pointed to above, and from the applicant’s submissions to me today.  It is apparent to me that he will continue to attempt to maintain hopeless litigation concerning this Tribunal decision.  I think it is appropriate to give the direction sought by the Minister.  

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  16 August 2005