SZBEU v Minister for Immigration - [2007] FMCA 2093

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBEU v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2093

MIGRATION – Review of decision of the Refugee Review Tribunal – application for summary dismissal – no reasonable prospect of success – application an abuse of process – Tribunal decision the subject of prior judicial review – application summarily dismissed.

Migration Act 1958, s.424A
Federal Magistrates Court Act 1999 (Cth), s.17A(2)
Federal Magistrate Court Rules 2001, rr.13.10(a), 13.10(b), 13.10(c)

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24
SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2
Somanadar v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677; [2000] FCA 1192
Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222; [2003] FCA 1054
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 395
SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110
SZFDE v Minister for Immigrationand Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZBXA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 96
NALE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 366
Walton v Gardiner (1993) 177 CLR 378
Rogers v R (1994) 181 CLR 251
Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314
SZAWW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 479
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26

Applicant:

SZBEU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3029 of 2007

Judgment of:

Nicholls FM

Hearing date:

13 December 2007

Date of Last Submission:

13 December 2007

Delivered at:

Sydney

Delivered on:

13 December 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms L Buchanan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 28 September 2007 is summarily dismissed pursuant to s.17A(2) of the Federal Magistrates Court Act 1999 (Cth) and Rules 13.10(a) and (c) of the Federal Magistrates Court Rules 2001.
No further application for review of the decision of the Refugee Review Tribunal signed on 13 October 2005, and handed down on 20 October 2005, in relation to the applicant, nor any application for review of any decision in relation to the application for a protection visa made by the applicant on 13 October 2001, whether made by a delegate of the respondent Minister or on review by the Tribunal, be accepted for filing without prior leave of the Court.
The applicant pay the first respondent’s costs set in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3029 of 2007

SZBEU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) on 28 September 2007 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 13 October 2005, and it appears handed down on 20 October 2005, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
By way of notice of motion filed on 2 November 2007, the first respondent Minister seeks summary dismissal of this application pursuant variously, and alternatively, to the following: s.17A(2) of the Federal Magistrates Court Act 1999 (Cth), and r.13.10(a) of the Federal Magistrate Court Rules 2001 (“the Rules”), and separately r.13.10(c) of the Rules, and separately again r.13.10(b) of the Rules.

Background

I have before me the application for review to which I have already referred. The grounds in that application are stated as follows:
“(1)The tribunal breached procedural fairness by making a decision;
(2)The tribunal denied natural justice;
(3)I will provide more details later.”
I also have before me the applicant’s affidavit of 25 September 2007 to which was attached the Tribunal’s decision. That affidavit states as follows:
“1. The decision by the RRT now falls within the application of High Court decision in the matter of SAAP, where the court made new ruling about the definition of s424A of the Migration Act. Although the matter was heard by the Court once already the decision of SAAP was in force ...”
I should interpolate there that the applicant explained “not in force”:
“… when the matter was in the Federal Magistrates Court and I could not make the argument.”
The affidavit continues:
“2. I would like to seek leave from the court to make this new line of argument on the basis that at the time of my matter before Federal Magistrates Court, the decision of SAAP was not in force and therefore there was a miscarriage of justice. I believe that it is important for the shake of natural justice that my application be allowed for filing ...”
I also have before me the Minister’s response to the application filed on 16 October 2007. As noted earlier, I also have before me the notice of motion, which I understood to supersede what was initially set out in the response. I also have the affidavits of Judith Pownall of 2 November 2007 and her affidavit of 11 December 2007, and the respondent’s written submissions filed 5 December 2007.

Hearing before the Court

At the hearing today the applicant appeared in person. He was assisted by an interpreter in the Bengali language. Ms L Buchanan appeared for the first respondent.
At the commencement of the hearing, the applicant provided written submissions and I will deal with those in due course.
The relevant background to this matter is conveniently set out in paragraphs 3 to 9 of the first respondent’s submissions, and to the extent that these submissions require and relate to evidence otherwise before the Court in support, I note in particular the matters that are set out and the annexures to the affidavit of Ms Pownall of 11 December 2007. I shall read these paragraphs onto the record and note that I adopt these paragraphs of the submissions for the purposes of the judgment and obviously by way of background. They are as follows:
“3. The applicant is a citizen of Bangladesh. He arrived in Australia on 1 October 2001. He applied for a protection visa on 30 October 2001. His application was refused by a delegate of the Minister on 26 March 2002. He lodged an application for review with the second respondent Refugee Review Tribunal (the Tribunal) on 14 April 2002.
4.By a decision dated 23rd June 2003, the Tribunal affirmed the decision made by the delegate of the Minister not to grant the applicant a visa. On 13th August 2003 the applicant filed an application for judicial review of that decision by the Federal Magistrates Court. On 13 May 2005 Federal Magistrate Driver set aside the Tribunal decision and made an order in the nature of mandamus requiring the Tribunal to redetermine the matter according to law (SZBEU v MIMIA [2005] FMCA 642)..
5.On 13th October 2005 a differently constituted Tribunal affirmed the delegate’s decision made on 26 March 2002 not to grant the applicant a protection visa.
6.The applicant filed an application for review of the Tribunal’s decision by the Federal Magistrates Court. On 22 March 2006 Federal Magistrate Scarlett dismissed the application (SZBEU v MIMA [2006] FMCA 437).
7.The applicant appealed from the decision of Federal Magistrate Scarlett to the Federal Court of Australia. On 17 November 2006 the appeal was dismissed by Spender J (SZBEU v MIMIA [2006] FCA 1544).
8.The applicant filed an application in the High Court of Australia seeking special leave to appeal from the decision of Spender J. On 5 September 2007, the application for special leave to appeal was dismissed by Hayne and Crennan JJ (SZBEU v MIMIA S460 of 2006); ([2007] HCA Trans 501).
9.On 28 September 2007 the applicant filed an application in the Federal Magistrates Court seeking review of the same decision of the Tribunal made on 13 October 2005 and notified to the applicant on 15 December 2005.”

Consideration

The notice of motion seeks dismissal of the applicant’s application made on 28 September 2007 pursuant to s.17A(2) of the Federal Magistrates Court Act and r.13.10(a) of the Rules. Section 17A(2) is in the following terms:
“The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.”
I also note, to the extent that it is relevant or may be relevant, s.17A(3) which is as follows:
“For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.”
Rule 13.10(a) reads as follows:
“The Court may order that a proceeding by stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim …”
The applicant’s application put before the Court now has no reasonable prospects of success. This same Tribunal decision which the applicant seeks to put before the Court now has already been the subject of judicial review proceedings. I note in this regard the annexure “JP2” to the affidavit of Ms Pownall of 11 December 2007 where is reproduced the judgment of Scarlett FM, and in particular I note that at [33] his Honour said:
“In my view, there is no jurisdictional error and the application will be dismissed.”
On appeal, Spender J sitting in an appellate capacity in the Federal Court (his Honour’s judgment is reproduced at annexure “JP4” to the affidavit of Ms Pownall of 11 December 2007), at [37] (page 55 of the annexures), said:
“The appellant has not demonstrated any error in the decision of Scarlett FM, or, indirectly, any error in the decision of the Tribunal. Consequently, the appellant is not entitled to any relief.”
I also note that the applicant sought special leave to appeal to the High Court and annexure “JP6” to the affidavit of Ms Pownall of 11 December 2007, which is the relevant part of the transcript of proceedings in the High Court, reports Hayne J, amongst other things, saying:
“…[t]here is no reason to doubt the correctness of the conclusions reached in the Courts below.”
It must be noted that with the benefit of Counsel, and it must be said Counsel who often appears in matters of this type before this Court, the applicant argued his case before Scarlett FM. As I said, Scarlett FM found no jurisdictional error in the same Tribunal decision that the applicant seeks to bring before this Court now. This conclusion was endorsed on appeal. I take the view that the combination of those two factors, that is, the finding by a fellow Federal Magistrate that there was no jurisdictional error in the Tribunal’s decision, and its endorsement on appeal by a judge of the Federal Court, has the effect that I am bound by the Federal Court sitting on appeal from this Court in this matter, and in particular, I am bound by the finding that there is no jurisdictional error in the Tribunal’s decision.
This situation does not change even if the matter were to be allowed to go to a final hearing today. As I said, I am bound by the appellate Court, in my view, as to the issue of whether jurisdictional error can be discerned in the Tribunal’s decision.
In this very real sense, therefore, there is not a reasonable prospect of success in the applicant’s application in the context of it being allowed to go through to a final hearing. In fact, more so in my view, it is in any event hopeless and bound to fail. Although I note that for the Minister to succeed pursuant to s.17A and r.13.10(a), it is not necessary to make such a finding.
But there is another quite separate reason as to why the applicant has no reasonable prospect of success. The stated grounds of the application, and I note in particular the references to breaches of procedural fairness and a denial of natural justice, are not particularised. They are mere assertions.
The applicant asserts in his application that he will provide more details. Relevantly, and directly, he has not provided further details by way of any amended application. The only thing that subsequently has been provided was written submissions provided at the commencement of proceedings today, to which I will return in a moment. However, in an affidavit which the applicant has also put before this Court, that is his affidavit of 25 September 2007, the applicant explains in that affidavit, and he confirmed this to the Court today, that he is seeking to have his matter reheard by the Court because although the Court on the earlier occasion made a ruling about the definition of s.424A of the Act, the High Court decision in SAAP (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 (“SAAP”)), “was not in force”, and he therefore seeks to argue his case in light of SAAP.
As I pointed out to the applicant during the course of the hearing, unfortunately for him the High Court in fact handed down its judgment in SAAP on 18 May 2005. This not only pre-dates the time when the matter came before Scarlett FM on 22 March 2006, but indeed predates the date of the Tribunal’s decision which is the subject of the applicant’s application before the Court now. The applicant was represented by Counsel before Scarlett FM, and indeed the very s.424A issue which the applicant now seeks to re-agitate was raised by Counsel on his behalf. The matter was argued in light of the Full Federal Court judgment in SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 (“SZEEU”), which I note was handed down on 24 February 2006 after the High Court’s judgment in SAAP.
This issue was pressed by the applicant’s Counsel and was considered by his Honour, and in particular I refer to [24]-[33] of Scarlett FM’s judgment. The principles of res judicata, issue estoppel, and Anshun estoppel, certainly apply to administrative law matters (See for example Somanadar v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677; [2000] FCA 1192 (“Somanadar”)).
In the present application the applicant raises the issues of procedural fairness and natural justice in the context of s.424A. This issue, as I have said, was before the Court and determined in substance. It was also the issue considered on appeal. See, for example, at page 46 of the annexures (annexure “JP4”) to the affidavit of Ms Pownall, that part of the judgment of Spender J (paragraph [2], item 5), which sets out part of the submissions made by the first respondent, and the relevant reference to s.424A. But more particularly, see [12]-[16] and [24]-[37] of his Honour’s judgment.
In light of this, it is clear that res judicata would apply. (See for example the case of Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222; [2003] FCA 1054 (“Thayananthan”) at [33], Somanadar at [45], and Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 395 (“Daniel”) at [18]-[23].) Also in these circumstances it is clear that issue estoppel would apply in support of the Minister’s notice of motion and in that regard, see Thayananthan at [51]. Given that the High Court’s judgment in SAAP had been decided, and even if it can be said that it was not considered in substance, then the issue of Anshun estoppel would apply, given that such a claim relying on anything said by the High Court in SAAP in relation to s.424A(1) could reasonably have been made in the prior proceedings. (See, for example, in that regard, Daniel at [24]-[25].)
I note in that context too, that Counsel was involved in the matter in the prior proceedings and no special circumstances can be discerned, and there is no evidence to argue, against Anshun estoppel applying. (See in that regard Thayananthan at [37], and Daniel at [27]-[29].) In any event, I must say even further that the ground as raised by the applicant, and I say this carefully because this Court in no sense sits as an appellate Court in this matter, that I cannot see that the applicant’s grounds as stated in the application to the Court, and as explained in the applicant’s affidavit would in any event otherwise succeed.
As I said to the applicant during the course of the hearing, he has already had a fair go before the Courts in relation to this Tribunal decision. The current application has no prospect of success, given what I have already said, and the continuation of this matter is clearly futile for the reasons that I have already stated. I should add to those reasons that nor do the applicant’s written submissions, provided to the Court today, assist with his position in pressing the application that he has put before the Court.
Firstly, I note that the submissions for a very large part argue that this Court has jurisdiction to hear the application. They are headed, “Applicant’s Submissions on Competency”. Unfortunately for the applicant, he has totally misunderstood the issue before the Court today. The applicant explained that he had drafted these submissions with the assistance of a friend and by making inquiries through the Internet. I was pressed to ensure that the applicant understood that the issue before the Court today did not involve the issue of the Court’s competency, that is, its jurisdiction to that extent, and this is not directed to the detail of what the applicant has said, but to the proposition to be derived from the submissions.
I agree with the applicant’s assertion that this Court has jurisdiction in that it is competent to hear his application. The issue, however, is whether the application should be summarily dismissed, notwithstanding that the Court has jurisdiction, for a number of different reasons to which I have already referred. I note in particular and in relation to those issues, the applicant’s submissions at page 13 make reference to res judicata and issue estoppel versus jus gentium and jus cogens. I should just also note for the record that at least the tenor of much of what is asserted by the applicant in these written submissions, and I note that he has said that he used the Internet to draft this document, is already familiar to this Court, even to the extent of large parts of the wording that have been used. But with an unrepresented applicant I make nothing of that other than to just note it.
Nonetheless, on the issue of res judicata and issue estoppel, it is not quite clear what paragraphs 47 and 48 of the submissions seek to achieve. While it may be debatable as to the status of jus gentium and jus cogens in the context of international law, there is nothing in what the applicant submits that is directed to, let alone could persuade the Court that, res judicata and issue estoppel do not apply in the circumstances of this case.
Similarly, in relation to the claimed breach of s.424A, set out in paragraphs 49 and 50 of the applicant’s submissions (and to the extent that the reference to “SZGSI” (SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110) is addressed at paragraphs 51 and 52), I can see that the issue of s.424A and its application to the Tribunal’s decision has already, as I have said, been the subject of judicial consideration in substance. That the applicant claims that the matter was not properly dealt with before cannot assist the applicant because in relation to the issue of s.424A an appellate Court, endorsed by a Judge of the High Court, has said that s.424A was properly dealt with before, and in those circumstances it is not open to this Court to make any alternative finding.

To the extent that the submissions make reference to the matter of “SZFDE” (SZFDE v Minister for Immigrationand Citizenship (2007) 237 ALR 64; [2007] HCA 35 (“SZFDE”)), the submissions state that there was fraud on the part of the Tribunal in accepting the “s.424A information”. SZFDE was handed down recently by the High Court and involved an issue of fraud by a migration agent relating to advice given to the applicants in that case and dealings with the applicants in that case such that the High Court found that fraud, which was found by the Federal Magistrate at first instance to have occurred, affected the exercise of the Tribunal’s jurisdiction as set out in Division 4 of Part 7 of the Act. In particular, the circumstances of that case related to an invitation to a hearing before the Tribunal pursuant to s.425.
There is absolutely no suggestion that any similar fact situation has occurred in this case and that there was any fraud involved in the Tribunal accepting the “s.424A information” in the sense as was found in SZFDE. In any event, as I have already said, the applicant’s complaint has already been the subject of judicial review and there is nothing before me to suggest that any such assertion, albeit without the benefit of SZFDE, was made in previous proceedings. Similarly, paragraph 54 of the applicant’s written submissions makes reference to SZATV (SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634; [2007] HCA 40 (“SZATV”)), and the issue of relocation. If the applicant did have a concern in that regard, then the opportunity to have raised that with the assistance of Counsel was clearly afforded to him before Scarlett FM.
Ultimately the rest of the matters raised in the written submissions, as I said, refer to the issue of jurisdiction of the Court and I note the applicant’s wish that this Court refer his matter to the High Court should it believe that the jurisdiction issue cannot be overcome. But as I have already said, there is no need to trouble the High Court in relation to that issue. In my respectful view, there is no need to trouble the High Court, because jurisdiction is not the issue before the Court today.
For these reasons, I will make the order sought by the first respondent and dismiss the application summarily. The Minister also presses that the Court find that this application is an abuse of the processes of the Court, and alternatively has sought dismissal pursuant to Rule 13.10(c) of the Rules. In this regard the Minister particularly relies on a judgment of Driver FM in SZBXA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 96 (“SZBXA”), and in particular what his Honour said relevantly at [9], and relies on that paragraph in particular to submit that the application that the applicant has now brought to this Court is for the purpose of ostensibly seeking a more favourable decision, or to extend the time in which the applicant remain in Australia.
The Minister submits that the conduct of the applicant before the Court today is in the nature of what was described by Driver FM in SZBXA. In short, I agree with these submissions. The applicant has run the full gamut of judicial review available in relation to this Tribunal decision. He has had ultimately a Judge of the High Court of Australia say that there was no reason to doubt the correctness of the conclusions reached in the Courts below.
Essentially he now seeks to re-agitate the very same issue, that is s.424A, in the context of natural justice and procedural fairness that has already been considered. The only reason that I can discern that in reality has been put forward by the applicant in seeking that reconsideration is, firstly, the claimed availability of a High Court authority which he said was not available at the time of earlier judicial proceedings, but which plainly was available at the time that his matter was considered by the Courts previously, and secondly, the application of SZEEU, a case that was specifically argued before the Courts previously.
Nor for that matter can I see that reference in submissions to SZGSI can assist the applicant in the circumstances of what is before me. In effect, taking into account the application to the Court, what the applicant has put before the Court by way of his affidavit, and what the applicant has put before the Court by way of his written submissions, in reality, there is nothing new in the applicant’s case and certainly nothing of any substance or relevance.
In these circumstances, I am satisfied that the applicant has brought this application to the Court now for the purpose of not remedying a perceived jurisdictional error in the Tribunal’s decision (and I say this emphasising that in effect there has been nothing new brought to this Court, that is, nothing new that was not available to the applicant earlier), but has come to this Court, in my view, for the purpose of extending his stay in Australia (NALE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 366, particularly at [12]).
But what is before the Court now is also an abuse of process, for a reason quite separate to what I have already said. The repeated bringing of similar applications where it would be unjustifiably vexatious or oppressive, or would bring the administration of justice into disrepute, is an abuse of process. These are matters in relation to which there is no dispute. (See Walton v Gardiner (1993) 177 CLR 378, Rogers v R (1994) 181 CLR 251, Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314.) Ultimately there is an underlying public interest that there be finality in litigation. I cannot see other that, in the circumstances of this case, the Minister should not be repeatedly vexed in the same manner and in the same fashion to which he has already been put in dealing with the applicant’s complaint.
I note also SZBXA, relied on by the Minister, and the reference to SZAWW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 479 (“SZAWW”), and in that context I note that the current case does not involve any relevant change in the law as that is properly understood, nor for that matter any change in the understanding of the law as claimed by the applicant. If, as was the case in SZAWW, it is an abuse not to permit an applicant to wait seven years to take advantage of a change in the law, then I cannot see any difference with what is before the Court now, other than the obvious temporal difference, to allow an applicant to assert that changes have been made in the law when plainly no change in, or understanding of, the law has occurred.
It may be that as an unrepresented applicant, the applicant has misunderstood or has simply made an error as to the availability of SAAP to him on previous occasions. But I can only emphasise in that context that he did have the benefit of Counsel and I am of the view that in the context of an abuse of the processes of the Court that this was, in a sense, a cynical searching for any excuse to be able to bring another claim about the same Tribunal decision which he has already had judicially reviewed.
Even beyond that, I note incidentally that the change to the understanding of what constitutes “information” for the purposes of s.424A(1), as recently expressed in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26, would on what is before the Court now render the applicant’s position that even if by some way the matter were to be reconsidered again, even more hopeless than it presently is. In all, therefore, I agree with the Minister that this application should be summarily dismissed. I do so pursuant to s.17A(2) of the Federal Magistrates Court Act and r.13.10(a) of the Rules, and I also find that the application is an abuse of process for the purposes of r.13.10(c) of the Rules.
In view of those findings, I do not see any necessity to further consider the Minister’s notice of motion as it relates to r.13.10(b). So I will make the orders sought by the Minister pursuant to rr.13.10(a) and (c) of the Rules. I think it is also appropriate for the reasons that I have already given, particularly for the reasons relating to abuse of process, that I make the further orders sought by the Minister that no further application in relation to this Tribunal decision be accepted without prior leave of the Court.
It is appropriate that an order for costs be made and there is nothing before the Court now to argue against such an order. As to the amount sought, I understood that the amount sought is not sought on any higher basis than just a recovery of party/party costs. That is, even in light of the finding of an abuse of process, the amount sought is not in any way by way of indemnity so on that basis I am satisfied that the amount sought, in the circumstances of what is before me, is a reasonable amount and I will make the order in those terms.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 20 December 2007