SZBJM v Minister for Immigration

[2003] FMCA 599

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBJM v MINISTER FOR IMMIGRATION [2003] FMCA 599

MIGRATION – Request by Minister for summary dismissal – where applicant already had appeal heard by Full Federal Court – where application in Federal Magistrates Court essentially a repeat of previous applications.

Federal Magistrates Court Rules Part 13, Rule 13.10

NADR of 2001 v Minister for Immigration (2002) 124 FCR 465
S157/2002 v Commonwealth of Australia [2003] HCA 2
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601

Applicant: SZBJM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1786 of 2003

Delivered on: 15 December 2003

Delivered at: Sydney

Hearing date: 15 December 2003

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs in the sum of $3,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1786 of 2003

SZBJM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application by the Minister for summary dismissal under Part 13, Rule 13.10 of the Federal Magistrate Court Rules. The applicant, by way of an application filed in this court on 1 September 2003 purported to seek review of a decision of the Refugee Review Tribunal of which he was advised on 6 November 2001. The application itself gives a flavour of the matter before me. It states:

   “ I lodged my protection visa application with the DIMIA but they refused to grant my protection visa.  I reviewed that decision to the RRT but the RRT also refused to grant my protection visa.  I lodged my review with the Federal Court but because of the privative clause and restriction I want to lodge this application following Plaintiff S157/2002 give me the right to lodge this application.”

   The grounds of the applicant's application are:

   1.   My case is identical with the Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal.

   2.   RRT's decision was affected by lack of procedural fairness and denial of natural justice issue at the time of deciding my protection visa application by the Tribunal member.

   3.   I would like to request the honourable court to accept my application in the test case of this court.

   4.   Plaintiff S157/2002 v Commonwealth of Australia gave me right to lodge this application.

2. There are two important omissions by the applicant in that application and particulars.  The first is that under NADR of 2001 v Minister for Immigration (2002) 124 FCR 465. He appealed against the decision of the Federal Court to the Full Bench of that Court. The second point is that when the decision of the Full Bench of the Federal Court went against him the applicant sought leave to appeal to the High Court of Australia. That leave was not granted but it is important to note that the application was made after the decision in S157/2002v Commonwealth of Australia [2003] HCA 2 was handed down.

3. A short perusal of the reported case of NADR will indicate that the Full Bench of the Federal Court decided that the appellant had not demonstrated a denial of procedural fairness and distinguished Muin v Refugee Review Tribunal (2002) 190 ALR 601. The applicant appears, therefore, to be seeking to agitate in this Court an issue which has already occupied the time of three other Benches. Today before me the applicant told me that when he applied to the Federal Court S157 had not been decided.  He told me that the decision of the RRT was mistaken and that was why he appealed to this Court.  He told me that the original date set down for the hearing of his case was May 2005 and because of that he had not been able to prepare properly for the hearing. He required more time, he required the assistance of a lawyer and he did not bring all his papers with him today.  The applicant also told me that the RRT did not judge his case properly or give him the right decision.

4. In putting these matters in my judgment I do not ignore the amended application filed by the applicant or the six-page written submission which he provided to me.  The difficulty I have with assisting him on the basis of these documents is that they rely heavily on the cases of Muin & Lie v Refugee Review Tribunal (2002) 190 ALR 601. They discuss at some length the privative clause and then suggests that the RRT did not complete the exercise of its jurisdiction because it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future. I am satisfied that this is as clear a case of res judicata as has come before me.  There is not only nothing which the applicant wishes to argue that he could not have argued before either the Full Bench or the High Court there is, it would appear, nothing that he has not argued.  By seeking to bring a repeat of his original application in this Court the applicant is to my mind bringing a proceeding or claim for relief which is an abuse of the process of the Court.  Because of the res judicata situation no reasonable cause of action is disclosed in relation to the claim for relief and I am therefore able to dismiss the application pursuant to Rule 13.2(a) or (c).

5. I would say that it is most unfortunate that the applicant's original proceedings set down in September cannot be heard until May 2005.  It surely behoves the Minister to speak to her colleagues in the Cabinet and to effect as soon as possible some appointments to this Court (four of which were promised over six months ago) so that these matters can be disposed of more quickly.

6. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,250 pursuant to Part 21, Rule 21.2(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: