SZDPF v Minister for Immigration

[2006] FMCA 172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 172

MIGRATION – Notice of motion that proceedings be dismissed as an abuse of process – where the decision of the RRT had already been reviewed and taken to the High Court.

Federal Magistrates Court Rules 2001, r.13.10(c)
Migration Act 1958 (Cth)

SZDPF v Minister for Immigration [2004] FMCA 1057
SZDPG v Minister for Immigration [2005] FCA 235
SAAP v Minister for Immigration (2005) 215 ALR 162
Port of Melbourne Authority v Anshun Pty Ltd (No. 1) (1980) 147 CLR 35

Applicant: SZDPF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2351 of 2005

Judgment of: Raphael FM

Hearing date: 3 February 2006

Date of Last Submission: 3 February 2006

Delivered at: Sydney

Delivered on: 3 February 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Substantive application dismissed.

2. No further application by the applicant to review the decision of the Refugee Review Tribunal handed down on 27 April 2004 or the decision of the delegate dated 29 November 2002 shall be accepted for filing by the court registry except by leave of this court.

3. Applicant to pay the respondent's costs assessed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2351 of 2003

SZDPF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. There is before me an application by way of notice of motion that the substantive application in these proceedings be dismissed on the basis that the proceedings amount to an abuse of the court's process for the purposes of Rule 13.10(c) of the Federal Magistrates Court Rules 2001.The application is supported by an affidavit of Brooke Marie Griffin dated 14 October 2005 and some helpful written submissions also prepared by Ms Griffin who appeared before me today.

   
   

   The applicant appears in person.

2. The short history of proceedings between this applicant and the Minister are that the applicant who claimed to be a member of the Awami League made an application for a protection (class XA) visa which was dismissed by the delegate on 29 November 2002. 

   
   

   He sought review of that decision from the Refugee Review Tribunal, which affirmed the delegate's decision in a decision that was handed down on 27 April 2004. On 21 December 2004 Federal Magistrate Scarlett made orders dismissing the application: SZDPF v Minister for Immigration [2004] FMCA 1057. The applicant, as he was entitled to do, appealed the decision of Scarlett FM to the Federal Court and on

   
   

   14 March 2005 Sackville J dismissed that appeal: SZDPG v Minister for Immigration [2005] FCA 235. The applicant sought special leave to appeal to the High Court and on 5 August 2005 McHugh and Heydon JJ dismissed that application for special leave. On 24 August 2005 the applicant filed the substantive application in this court seeking review of the same decision of the Tribunal handed down on 27 April 2004.

3. I asked the applicant why he felt that he should be permitted to

   
   

   re-litigate this claim.  He told me that the Tribunal didn't understand his documents or ask him questions; he told me that according to a High Court decision he had the right to know the reasons for the Tribunal's decision; he told me that on page 26 of the Tribunal's decision something had been said which was not true; he told me that the police could harass anybody in Bangladesh and they had no need to obtain permission to do that from any court; he told me that on page 29 paragraph 8A of the decision there was information that he didn't understand and he had the right to have it explained to him; he told me that he'd given his documents to the Department of Immigration & Multicultural Affairs (“DIMA”) and not to the Tribunal and that if the Tribunal wanted to use his documents they had to ask his permission; he complained about the inconsistency between the Tribunal suggesting that all documents from Bangladesh were forged and asking him for evidence to establish the allegations he had made; he told me that as the Tribunal did not believe him he should have the case remitted to the Refugee Review Tribunal.

4. All the matters raised by the applicant before me with one possible exception could have been raised in the proceedings before Federal Magistrate Scarlett, Sackville J and the High Court.  The one exception is what I take to be the SAAP v Minister for Immigration (2005) 215 ALR 162 point about the applicant giving the documents to DIMA but even here the applicant runs foul of the doctrine known as Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (No. 1) (1980) 147 CLR 35. This is because the decision in SAAP (supra) was handed down by the High Court on 18 May 2005 and the applicant made his application for special leave in August.  If he had wished to argue the SAAP point he could have done so at the special leave application.

5. There is now sufficient authority in this court and in the Federal Court for it to be notorious that seeking to review a decision of the Refugee Review Tribunal that has already been reviewed and taken up to the High Court constitutes an abuse of process for which Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules provides a remedy. This case is such an abuse.

6. I dismiss the substantive application.  In order to prevent any further applications I will also make an order that no further application by the applicant to review the decision of the Refugee Review Tribunal handed down on 27 April 2004 or the decision of the delegate dated

   
   

   29 November 2002 shall be accepted for filing by the court registry except by leave of this court. I order that the applicant pay the respondent's costs which I assess in the sum of $1,500.

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

Associate: 

Date:  9 February 2006