SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs

Case •

[2006] FCA 576

•

3 MAY 2006

FEDERAL COURT OF AUSTRALIA

SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 576

SZDFO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR
NSD 42 of 2006

HEEREY J
3 MAY 2006
SYDNEY



IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 42 of 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZDFO
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

3 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The application for leave to appeal is dismissed;

2.   The applicant pay the first respondent’s costs fixed at $1200.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 42 of 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZDFO
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

HEEREY J

DATE:

3 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant sought before a Federal Magistrate judicial review of a decision of the Refugee Review Tribunal of 21 July 1998 affirming a decision of a delegate of the Minister to refuse to grant a protection visa.  The application was dismissed: SZDFO v Minister for Immigration (No 2) [2005] FMCA 1935.

  2. The applicant is a citizen of Bangladesh.  The essence of his claims before the Tribunal was that he suffered persecution as a member of the Bangladesh Freedom Party under an Awami League government.  The Tribunal found the applicant's claims lacked detail and specificity and also were contrary to independent country information.  The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.

  3. The applicant has challenged the Tribunal's decision on two previous occasions in this Court.  On 3 November 1998 Hely J dismissed an application for review on the basis that the applicant did not attend the hearing: Chowdhury v Minister for Immigration & Multicultural Affairs [1998] FCA 1396. On 9 September 2004 Allsop J dismissed an appeal from a decision of the Federal Magistrates Court made on 11 June 2004: SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192. An application for special leave to appeal to the High Court was abandoned. The applicant then commenced fresh proceedings in the Federal Magistrates Court.

  4. Before the Federal Magistrate the applicant relied on generally expressed grounds of bad faith, lack of natural justice, denial of evidentiary proof of the claim, not reflecting the material facts, a pre-set decision, mixing up many facts, ignoring facts and lack of inquiry. The applicant repeated his claim to be a refugee.  The respondent Minister submitted that the applicant is estopped or that the proceedings are an abuse of process.  The respondent Minister also submitted that the principles of res judicata apply.

  5. The Federal Magistrate found that the applicant was seeking to review the same Tribunal decision and seeking to re-litigate essentially the same claims for relief and on that basis res judicata would apply.  The Federal Magistrate also held that the applicant was estopped from bringing the proceedings and was precluded from raising any of the generally expressed grounds that could have been raised in the previous proceeding.  The magistrate was satisfied that the proceedings should be dismissed as an abuse of process.

  6. In support of the application for leave to appeal the applicant filed an affidavit and draft notice of appeal repeating claims that he made before the Federal Magistrate that the Tribunal refused to accept that the applicant had a well-founded fear of persecution for a Convention reason, failed to take into account relevant considerations, did not consider the application properly, did not accept the applicant's claims, made a decision involving a jurisdictional error from an incorrect interpretation of the applicable law to the facts of the case.

  7. The applicant was not represented by counsel but he had the assistance of an interpreter. He did not wish to make any oral submissions. 

  8. The decision of the Federal Magistrate was plainly correct for the reasons he gave.  No appeal would have any reasonable prospect of success. The application for leave to appeal will be dismissed with costs fixed in the sum of $1200.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Conti & Jacobson.

Associate:

Dated:             

Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent:  A Markus
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 3 May 2006
Date of Judgment: 3 May 2006
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