SZBJZ v Minister for Immigration & Anor
[2008] FMCA 1381
•8 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1381 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate refusing to grant a protection visa to the applicant – applicant is a citizen of Bangladesh. PRACTICE & PROCEDURE – Abuse of process – where application for review heard and previously decided – application dismissed as an abuse of process – vexatious proceeding. |
| Migration Act 1958 (Cth) |
| SZBJZ v Minister for Immigration [2005] FMCA 639 SZBJZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1329 SZBJZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 397 SZBJZ v Minister for Immigration and Citizenship & Anor [2007] HCATrans 683 SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175 |
| Applicant: | SZBJZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2101 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 September 2008 |
| Date of Last Submission: | 8 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Ms Attard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 14 August 2008 is dismissed as an abuse of the process of the Court.
In the Alternative, the application filed on 14 August 2008 is dismissed as a vexatious proceeding.
No further application for review of any decision of the Refugee Review Tribunal relating to a decision of the first respondent made on 3 April 2003 refusing the grant of a protection visa to the applicant is to be accepted for filing without leave of the Court.
The applicant is to pay the first respondent’s costs in the sum of $1,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2101 of 2008
| SZBJZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application to review a decision of the Refugee Review Tribunal signed on 16th July 2008 in which the Tribunal found it did not have jurisdiction in this matter. The Tribunal found that it did not have jurisdiction because the application to the Tribunal was an application for review of a decision of a delegate of the first respondent, now known as the Minister for Immigration and Citizenship, made on 3rd April 2003, refusing the applicant's application for a protection visa. The reason why the Tribunal found it did not have jurisdiction was because the Tribunal had already reviewed the Minister's decision and affirmed the decision not to grant a protection visa the applicant in the application to the Tribunal was making his third application to the Tribunal for review of the same delegate's decision.
The applicant, when asked why he was bringing these proceedings, said that there are problems in his home country, Bangladesh, and that he cannot return at this time. He had nothing further to say. I accept the fact that the situation in Bangladesh is and has been for some time unstable to say the least. However, that does not justify bringing an application to the Court that is a blatant abuse of the Court's process.
I have had the opportunity of reading an affidavit of Denise Attard, solicitor, which was filed at the Court on 3rd September 2008, in which she sets out the applicant's litigation history.
The applicant arrived in Australia on 30th December 2002 and applied for a protection (Class XA) visa with the department then known as the Department of Immigration and Multicultural and Indigenous Affairs on 29th January 2003. On 3rd April in that year, a delegate of the Minister refused the application for a visa. The applicant then, on
10th April, applied to the Refugee Review Tribunal for a review of that decision. The Tribunal heard the application for review and took evidence from the applicant himself. On 21st July 2003, the Tribunal signed its decision affirming the decision not to grant the applicant a protection visa. That decision was handed down on 14th August 2003. The applicant then applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The application was heard on
13th May 2005, and a judgment was delivered that same day by Driver FM dismissing the application with costs (see SZBJZ v Minister for Immigration[1]). The applicant then appealed against that decision.
The appeal was heard by Moore J, who handed down a decision on
23rd September 2005dismissing the appeal with costs (see SZBJZ v Minister for Immigration and Multicultural and Indigenous Affairs[2]). The applicant then sought special leave to appeal from the High Court of Australia. On 3rd August 2006 Kirby and Callinan JJ dismissed the application for special leave (see SZBJZ v Minister for Immigration and Multicultural and Indigenous and Anor.[3]
[1] [2005] FMCA 639
[2] [2005] FCA 1329
[3] [2006] HCATrans 397
The applicant then commenced proceedings in this Court on
28th August 2006. That application was heard by Barnes FM on
7th February 2007. The application was an application for review of the same decision of the Refugee Review Tribunal that had been the subject of the proceedings before this Court and on appeal to the Federal Court and the High Court of Australia. On 7th February 2007, Barnes FM dismissed the application with costs. However, the applicant sought leave to appeal against that decision. On 27th March 2007, Moore J refused the application for leave to appeal with costs. The applicant again sought special leave to appeal from the High Court of Australia. On 15th November 2007, Gummow and Kiefel JJ found that the application was without merit and dismissed it. Their Honours said:
The application is without merit. The decision below was clearly correct. The application was time-barred and it was an abuse of process (see SZBJZ v Minister for Immigration and Citizenship and Anor).[4]
Notwithstanding that firm decision by the High Court on
15th November, in applicant then went back to the Refugee Review Tribunal on 5th December 2007 applying for review of the decision of the delegate made back on 3rd April 2003. The Tribunal member found that as the Tribunal had already discharged its functions under the act to review the delegate's decision of 3rd April 2003, the Tribunal no longer had jurisdiction in relation to that decision. The applicant apparently did not seek to have that decision judicially reviewed by this Court or any other Court, but, instead, on 8th July 2008 lodged another application for review of the delegate's decision. The Tribunal again found on 16th July 2008 that he did not have jurisdiction. The Tribunal said:
As the delegate's decision of 3 April 2003 has already been the subject of a valid review by the Tribunal, it is no longer an RRT reviewable decision under s. 411. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.
[4] [2007] HCATrans 683
The applicant then, on 14th August 2008, commenced proceedings in this Court seeking review of the Tribunal's latest decision. It is quite clearly the latest stage in a blatant pattern of abuse of process of this Court. There is no jurisdictional error in the Tribunal's original decision. It is not open to a party to seek to have the Tribunal decision reviewed again. I am referred to the decision of Moore J in SZBWJ v Minister for Immigration and Citizenship.[5] At [18] in SZBWJ (supra), his Honour commented that, in the case before him:
Various applications for judicial review of the Tribunal's decision on the first review application were rejected.
[5] [2008] FCA 1175
That is exactly the case here. The application is entirely without merit. It will be dismissed as an abuse of process. It would also appear to me to be a vexatious proceeding, and I propose to make an order restraining the applicant from bringing any further application for review without leave of the Court. This is also a suitable matter for costs.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 1 October 2008
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