SZDBY v Minister for Immigration - [2005] FMCA 1865

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDBY v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1865

MIGRATION – RRT decision – previous judicial review proceedings – new application dismissed as abuse of process.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474(1)

SZDBY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 482
SZDBY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1604
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

Applicant:

SZDBY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2752 of 2005

Judgment of:

Smith FM

Hearing date:

1 December 2005

Delivered at:

Sydney

Delivered on:

1 December 2005

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the First Respondent:

Mr D Sim

Solicitors for the Respondents:

Clayton Utz

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the first respondent’s costs on an indemnity basis in the sum of $2,500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 28 September 2000 reference N98/25798 or for review of the decision of the delegate of the first respondent dated 31 October 1998 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2752 of 2005

SZDBY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this matter is an application under s.39B of the Judiciary Act 1903 (Cth) seeking orders by way of judicial review of a decision handed down by the Refugee Review Tribunal on 28 September 2000. The Tribunal affirmed a decision taken by a delegate on 31 October 1998, refusing to grant a protection visa to the applicant.
The present application was filed in this court on 27 September 2005. Prior to the first court date the Minister filed an interlocutory application seeking dismissal of the application as an abuse of the process of the court. The applicant attended at the first court date, and was present when I set the hearing of the interlocutory application down for today. I am confident that he was aware of the nature of the proceeding that would occur today.
He has not appeared and there has been no communication to the court explaining his absence. In the circumstances, including the history which I am about to recount, I consider it appropriate for the court to proceed under r.13.03A(d) in his absence, and to decide the Minister’s application on its merits.
The applicant's prior history of litigation is as follows. The Tribunal's decision, as I have indicated, was handed down on 28 September 2000. The Tribunal addressed claims by the applicant that he would be persecuted if he returned to Pakistan, due to witnessing the murder of his uncle in 1995 by people who he associated as being Shia Muslims, his uncle being a Sunni Muslim.
The Tribunal gave two reasons for considering that the applicant was not a person to whom Australia had protection obligations. First, it considered that his fear of being persecuted by the people who were responsible for his uncle's murder would not be persecution for a reason covered by the Refugees Convention. It also addressed the situation of Sunni Muslims in Pakistan, and considered that the applicant would be provided with a level of protection sufficient to remove a real chance of his being persecuted by Shia people if he returned to his own home area in Pakistan now or in the reasonably foreseeable future, however his fears were characterised.
The applicant appealed to this court invoking the same jurisdiction as the present application, and using a form of application so broad as to encompass every conceivable ground of jurisdictional error. The applicant did not particularise any ground. Federal Magistrate Raphael addressed the validity of the Tribunal's decision in a judgment given on 23 July 2004 (see SZDBY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 482). His Honour concluded at paragraph 11:
I am satisfied that the decision of this Tribunal does not disclose any error that would lead to the conclusion that it failed to exercise or exceeded its jurisdiction. There is no evidence whatsoever that the Tribunal failed to provide the applicant with procedural fairness or that it failed to complete the task upon which it embarked. I am not aware of any matters that it took into account that were irrelevant or that it failed to take into account any relevant material.
The applicant appealed to the Federal Court of Australia, and appeared at directions hearings held by Allsop J. However, he did not appear at the hearing of his appeal, and his Honour proceeded to determine the matter in the absence of the applicant. He dismissed the appeal on 6 December 2004 (see SZDBY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1604). His Honour concluded:
"The appellant's notice of appeal gives no coherent ground of appeal. I have read the Tribunal's decision and reasons and I have read the decision of the learned Federal Magistrate. Unassisted by any argument as to what conceivably might be the jurisdictional error, I am unable to identify any such jurisdictional error and I am unable to identify any error in the learned Federal Magistrate's reasons or approach."
The applicant then applied for special leave to appeal to the High Court, using an unhelpful form of application commonly seen in that court. On 30 August 2005 McHugh and Hayden JJ published the reasons of the court for refusing leave. Their Honours said that the special leave application did not demonstrate the necessary factual basis for relying on Muin's case, and that the appeal had no prospect of success.
Within a month the applicant had commenced his present fresh proceeding for judicial review. The form of application that he has adopted makes allegations of jurisdictional error which in my opinion could all reasonably have been raised in the previous proceedings if they had any merit, which is not apparent. In my opinion, his current proceeding is doomed to fail under principles of Anshun estoppel (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).
Moreover, I also consider that his present application faces an absolute objection by way of issue estoppel arising from Raphael FM's conclusion, in effect, that the Refugee Review Tribunal's decision is a privative clause decision for which relief is barred under s.474(1) of the Migration Act.
I therefore consider that it is appropriate to dismiss the application as an abuse of the process of the court. I also consider, taking into account the history of the matter and the documents which the applicant has used throughout its course, that the applicant is a person who brings proceedings without any concern as to their merit, and predominantly for the purpose of continuing to qualify for bridging visas to extend his stay in the country. I therefore propose to make the order sought by the Minister, directing the Registry of this court not to receive further applications in relation to decision-making on the applicant's application for a protection visa, without the prior leave of the court. I consider it appropriate in the circumstances of the case also to order costs on an indemnity basis.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 20 December 2005