SZBHO v Minister for Immigration
[2005] FMCA 1930
•8 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBHO v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1930 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa. PRACTICE & PROCEDURE – Notice of Motion – res judicata – issue estoppel – Anshun estoppel – abuse of process – summary dismissal – objection to competency. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.477(1A) Federal Magistrates Act 1999 (Cth) s. 15 |
| Colgate Palmolive Ltd v Cussons Ltd (1993) 46 FCR 225 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed SZBHO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 907 SZBHO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 544 SZBHO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 692 |
| Applicant: | SZBHO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2827 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 November 2005 |
| Date of Last Submission: | 7 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Mr Kettle Sparke Helmore |
ORDERS
The application is not competent.
The application is dismissed.
The Applicant is restrained from filing or attempting to file any application for review of the decision of the Refugee Review Tribunal made on 30 June 2003 and handed down on 25 July 2003 without leave of the Court.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00 and together with Court costs of $288.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2827 of 2005
| SZBHO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 30 June 2003. It is of course out of time as it was not made within the time limit of 28 days specified by s.477(1A) of the Migration Act. It is an abuse of the process of the Court.
The solicitors for the respondent Minister have filed a notice of objection to competency objecting to the jurisdiction of the Court to review the decision of the RRT because the application is out of time, as prescribed by s.477(1A) of the Act. They have also filed a notice of motion asking that the application should be summarily dismissed. There are four grounds:
(1)That the doctrine of res judicata applies and is a complete bar to the application.
(2)That the doctrine of issue estoppel applies and is also a complete bar.
(3)That the doctrine of Anshun estoppel applies and there are no special circumstances to justify its non-application.
(4)Finally, under r.13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.
The Refugee Review Tribunal made its decision on 30 June 2003.
The applicant was not satisfied with the decision made by the Tribunal to affirm a decision of the delegate of the Minister to refuse his application for a protection visa. He sought a review of that decision by the Federal Magistrates Court. The Federal Magistrates Court heard his application on 18 November 2004. On that date Barnes FM heard the application in detail, including hearing oral submissions from the applicant. The Federal Magistrate was not satisfied that the applicant had made out his case and she dismissed the application with costs.
On 6th December 2004 the applicant filed a notice of appeal in the Federal Court of Australia. That appeal was dismissed with costs on
8 February 2005 by Madgwick J. The applicant then on
10th March 2005 filed a notice of motion in the Federal Court seeking a reinstatement of his appeal. That application was dismissed with costs, again by Madgwick J, on 14 April 2005.
The applicant then filed an application for special leave to the High Court of Australia. On 8 September 2005 his application for special leave to appeal was refused. In a joint judgment of Gummow and Kirby JJ, Gummow J said in the penultimate paragraph:
We have reviewed the applicant's written case and the decisions of the Tribunal, the Federal Magistrates Court and Madgwick J in the Federal Court. It is apparent from the applicant's written case that he seeks in large part to reopen the Tribunal's findings of fact. There are no prospects of success in any appeal to this Court. Accordingly, special leave to appeal is refused.
After the High Court refused the application for special leave to appeal on 8 September 2005, the applicant then commenced these proceedings on 4 October 2005. I note that the filing fee was waived on the basis that he said he did not have the funds to meet it.
It is quite clear that the applicant cannot take ‘no’ for an answer.
His application for a protection visa was refused by the Department for Immigration & Multicultural & Indigenous Affairs. His application for review by the Refugee Review Tribunal was unsuccessful. His original application to the Federal Magistrates Court was unsuccessful.
His attempts to appeal to the Full Court of the Federal Court were unsuccessful. His application for special leave to appeal to the High Court of Australia was unsuccessful. Today he has again sought to challenge the factual findings of the Refugee Review Tribunal.
The Court has no jurisdiction to hear this application and in my view, the application is an abuse of process. The Court has no jurisdiction to hear the application because the decision of the Refugee Review Tribunal is a privative clause decision and it has been found to be so by the Federal Magistrates Court on 18 November 2004. The application is out of time under sub-s.477(1A). In any event, there is a finding by the Federal Magistrates Court that there is no reviewable error and the doctrine of res judicata applies. It is unnecessary for me to consider whether issue estoppel applies or whether Anshun estoppel applies.
I am of a view that these proceedings are an abuse of process because the proceedings seek to re-litigate an application that has already been litigated up to and including an application for special leave to the High Court of Australia. The proceedings, to my mind, have clearly been brought for an ulterior motive because the applicant wishes to remain in Australia. He told the Court how terrible conditions were in Bangladesh due to violence and bombings, but he was content for his family to remain living there. He has provided no reason why the application should be sent back to the Refugee Review Tribunal except that he wishes to be able to work in Australia and make money. I have every sympathy for a man who wishes to work and earn money to support hardship family, but these proceedings are an abuse of the process of the Court and they must go no further.
The application has been unsuccessful and the notice of motion is upheld. I am satisfied that this is a matter for costs and because I have found these proceedings to be an abuse of process, costs should be awarded on an indemnity basis on the authority of Colgate Palmolive Ltd v Cussons Ltd (1993) 46 FCR 225. The solicitor for the first respondent Minister estimates those costs at $3,000.00 and that appears to me to be within the range.
The applicant says that he has no funds to meet that order for costs and I note that he informed Barnes FM in similar terms back on
18 November 2004 when her Honour made a costs order in dismissing his original application. I accept that his assertion is true and that he does not have the funds to meet an order for costs. Nevertheless, that is not a ground for not making an order for costs.
I note that the filing fee of $288.00 was waived. Because I have found these proceedings to be an abuse of process, to my mind it is inappropriate for that waiver to continue. The Court has power under s.15 of the Federal Magistrates Court Act 1999 (Cth) to deal with abuses of its own process. It is inappropriate for the Court to permit applicants to abuse the Court's process free of charge.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 December 2005
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