SZDPZ v Minister for Immigration

[2005] FMCA 1952

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPZ v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1952

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

Acts Interpretation Act 1901 (Cth) s.8
Federal Magistrates Court Rule 13.10(c)
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.483A
Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773
SZDPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 821
SZDPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 795
SZDPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1016
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

Applicant: SZDPZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 3180 of 2005

Delivered on: 23 December 2005

Delivered at: Sydney

Hearing date: 23 December 2005

Judgment of: Smith FM

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Ms Bautista

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.

2. The applicant must pay the first respondent’s costs in the sum of $2,100.

3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 19 December 1997 reference N97/14732 or for review of the decision of the delegate of the first respondent dated 12 March 1997 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

SYG3180 of 2005

SZDPZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The principal application in this matter was filed on 1 November 2005. It invokes the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) and s.39B of the Judiciary Act 1903 (Cth), and seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 19 December 1997. The Tribunal affirmed a decision of a delegate made on 12 March 1997, which refused to grant protection visa to the applicant.

2. The applicant had arrived in Australia from Pakistan in September 1996, and soon after arrival he lodged an application for protection visa. The events upon which the applicant claimed refugee status occurred in 1995, when he claimed to have been persecuted by supporters of the then government because of his attendance at the grave of General Zia, a former leader of a party which had previously held government in Pakistan.

3. Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).

4. The application was given a return date on 30 November 2005 before me.  On that occasion, the Minister foreshadowed an interlocutory application for the summary dismissal of the application, and I gave directions for it to be heard today.  I am satisfied that the Minister has complied with my orders for service of the relevant documents, including a written submission, in time for the applicant to prepare his arguments in response.  He has filed a written submission, which I shall refer to below. 

5. The Minister's interlocutory application seeks orders under Federal Magistrates’ Court Rule 13.10(b) or (c) for the summary dismissal of the proceeding.  I propose to consider the matter under (c), and to determine whether the continuation of the proceeding would be an abuse of the process of the Court due to a history of litigation, and an assessment of whether the application is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119 at [61]).

6. The applicant's application is not subject to the privative clause provisions in Part 8 of the Migration Act, due to the fact that he was a party to pending proceedings for judicial review of the same decision of the Tribunal at the time of commencement of those provisions (see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Sch.1 cl.8 and SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 at [33]). However, as in his previous cases to which I shall refer, the applicant must be able to show grounds of error which would permit the grant of writs which he seeks. In the case of a writ of mandamus, this would require the establishment of jurisdictional error.

7. The applicant's previous history of litigation is set out in an affidavit of Katherine Jane Grey sworn 15 November 2005, and the documents attached.  In addition to those documents, I have read the decision of the Tribunal dated 19 December 1997 contained in a Court Book from the previous proceeding.

8. The Tribunal affirmed the delegate's decision after assessing the applicant's claims.  It said that, although it accepted the occurrence of the incident to which he referred, it did not accept other parts of his claims, and was not satisfied that there was a real chance that he faced treatment amounting to persecution at the hands of the Pakistani authorities.  It also considered that it was open to him to relocate within Pakistan from the village in which the incident had occurred, so as to avoid any harm that he feared. 

9. The applicant applied for judicial review of the Tribunal's decision by application filed in this Court on 21 May 2004, invoking the same jurisdiction as is invoked in the present proceeding. 

10. Before he brought that application he had been party to proceedings for an order nisi, the exact nature of which is not clear on the documents before me, but it seems to have been the Ms Lie class action.  Ms Gray's affidavit states that the applicant lodged an individual application for an order nisi, which was refused by order of Emmett J on 20 February 2004.  A copy of his Honour's judgment is not before me, but it is reasonable to assume that it left open to the applicant the commencement of further judicial review proceedings without fear of estoppel. For that reason, no doubt, no point was taken in the proceedings commenced in this Court in May 2004 based on estoppel or discretion.

11. The application to this Court was considered at a final hearing by Scarlett FM on 8 December 2004, and his Honour dismissed the application and gave his reasons on that day (see SZDPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1016).

12. His Honour was misled by a notice of objection to competency filed by the Minister invoking the time limit in s 477(1A), which only applies to matters which are subject to the privative clause provisions.  However, as I have indicated, that was a matter of no materiality since his Honour in any event was required to address whether there was jurisdictional error affecting the Tribunal decision before he could remit the matter under a writ of mandamus.

13. His Honour did review the reasons of the Tribunal and the arguments which were put by the applicant to him as to the defects in the Tribunal's decision.  He rejected the applicant’s arguments, and concluded:

    My own review of the decision of the Refugee Review Tribunal does not show any jurisdictional error.  The Tribunal’s decision was against the applicant on the basis that the Tribunal just did not accept the credibility of his evidence.  The Tribunal was not satisfied that he had made out his case.

14. The applicant appealed from that judgment to the Federal Court, where his appeal was considered by Moore J at a hearing on 9 June 2005.  His Honour on that day gave a judgment explaining his reasons for dismissing the appeal (see SZDPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 795).

15. Moore J noted that Scarlett FM had proceeded on a mistaken belief that s 477(1A) applied to the proceedings for review.  However, his Honour concluded that this did not lead to the result that the appeal should be allowed.  His Honour reviewed the Tribunal's reasons for himself, as well as the reasons of Scarlett FM.  He took into account written submissions filed by the applicant, and said:

    None of them point in any jurisdictional error on the part of the Tribunal, though they do acknowledge and rely on the conceded error of the Federal Magistrate in dismissing the matter as incompetent.  Having regard to the decision of the Tribunal and the various ways that the appellant has sought to impugn the Tribunal's decision, no case of substance has emerged.  In those circumstances I accept that the appropriate order to make is as submitted by the Minister, namely that the orders of the Federal Magistrate should be varied by deleting the word "as incompetent" in order 1 but that the appeal should otherwise be dismissed and the appellant ordered to pay the respondent's costs.

16. The applicant then applied for special leave to appeal to the High Court of Australia, and ultimately that leave was refused.  Hayne and Callinan J published the reasons of the Court on 6 October 2005 (see SZDPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 821). Hayne J said:

    The principal reason why the applicant failed before the Refugee Review Tribunal was that he was unable to satisfy it that his claims of fear of persecution for a Convention reason, which were contradictory and unpersuasive, were credible. 

    Neither the Federal Magistrate nor the Federal Court was able to discern any jurisdictional or like error on the part of the Tribunal in rejecting the applicant's claims, and nor can we.

17. It is apparent, therefore, that the applicant has had the benefit of four judicial officers carefully examining the reasoning of the Tribunal in his case.  They have been unable to identify any ground for giving relief by way of judicial review.  In those circumstances, in my opinion, the present application is doomed to failure on principles of Anshun estoppel. 

18. The applicant has in his new application filed in this Court not pleaded any ground of jurisdictional error which could not have been reasonably argued in his previous litigation, nor have I been able to find such an argument in his four page written submission which I have carefully considered.  Indeed, largely it amounts to a re-assertion of his refugee claims.   However, as no doubt has been explained to him previously, it is not the function of the Court to decide whether those claims should be accepted.

19. I invited the applicant today to point to any argument which he did not put previously, and he was unable to identify one.  Nor has he pointed to any circumstance which would provide a special circumstance to allow the Court to exercise its discretion to allow new points to be raised in fresh proceedings (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).

20. Essentially, his submission to me today was that he continues to believe that there would be problems facing him if he returned to Pakistan, and that is why he has remained in Australia for so many years.  I respect the apparent sincerity of this belief, but in my opinion it does not justify continuation of the proceeding in the face of the clear Anshun estoppel.

21. In view of the hopelessness of his application and the litigation history which I have recounted above, indicating he has enjoyed very full opportunity to have the legality of the Tribunal's decision canvassed in the Courts of Australia, I consider it appropriate in all the circumstances to make the orders sought by the Minister in the interlocutory application.  Moreover, taking note of the apparent lack of understanding by the applicant of the need for finality in his litigation, I consider that I should include a direction to the Registrar of this Court not to permit further applications concerning the decision-making on his protection visa application to be brought without prior leave of the Court.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  10 January 2006