SZECK v Refugee Review Tribunal

[2006] FMCA 646

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZECK v REFUGEE REVIEW TRIBUNAL & ANOR [2006] FMCA 646

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution on the ground of political opinion.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process – res judicata – where application for review previously heard and decided – Anshun estoppel – competence – application dismissed as abuse of process.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474,477
Federal Magistrates Court Rules 2001 r.13.10

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1075
SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283

Applicant: SZECK

First Respondent: REFUGEE REVIEW TRIBUNAL

Second Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG 2783 of 2005

Judgment of: Scarlett FM

Hearing date: 20 April 2006

Date of Last Submission: 20 April 2006

Delivered at: Sydney

Delivered on: 20 April 2006

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The title of the Second Respondent is changed to Minister for Immigration & Multicultural Affairs.

2. The application is not competent.

3. The application is summarily dismissed as an abuse of process.

4. The Applicant is to pay the Second Respondent’s costs fixed in the sum of $3,800.00.

5. No application for review of the decision of the Refugee Review Tribunal made on 7 April 2003 and handed down on 10 April 2003 is to be accepted for filing in any Registry of the Court without leave.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2783 of 2005

SZECK

Applicant

And

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is a notice of motion to dismiss an application for review of a decision of the Refugee Review Tribunal made on 7^th April 2003.  The Tribunal handed down its decision on 10^th April 2003. The decision of the Tribunal was to affirm a decision of a delegate for the Minister not to grant a protection visa to the applicant. The notice of motion seeks summary dismissal of the substantive application under r.13.10 of the Federal Magistrates Court Rules on the grounds that (1) the proceeding is frivolous or vexatious, and (2) the proceeding is an abuse of process of the Court.

2. The applicant filed his substantive application on 29^th September 2005.  In that he seeks a review of the decision of the Refugee Review Tribunal that was made on 7^th April 2003.  He seeks orders in the nature of certiorari, prohibition and mandamus.  He sets out four grounds: 

   1.That the Tribunal exceeded its jurisdiction or constructively failed to do so by asking itself the wrong question. 

   2.That the Tribunal denied the applicant natural justice in that the Tribunal was biased, or in the alternative there was an apprehension of bias in the making of the decision. 

   3.That the Tribunal has completely ignored the applicant's claim which has connection with the Department of Foreign Affairs and Trade people of Australian High Commission in Dakar, Bangladesh. 

   4.The applicant refers to the High Court decision of Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.

3. The applicant filed an outline of submissions on 24^th January 2006 which deal with the applicant's claims. They refer to a denial of procedural fairness and natural justice; they refer to a breach or alleged breach of s.424A of the Migration Act and cite a number of decisions in support of s.424A. The submission claims that the Tribunal made a jurisdictional error and that it did not correctly interpret and apply the definition of “refugee” and misconstrued and misapplied the definition of “persecution” and the notion of “well-founded fear” for the purpose of the Refugees Convention.

4. The submissions do not seem to bear a great deal of connection with the substantive application.  The respondent Minister seeks summary dismissal of the application.  The basis for this is that the proceedings have in fact been dealt with before.  The applicant previously applied to this Court for review of the decision of the Refugee Review Tribunal on 30^th July 2004.  And on 13^th December that year in proceedings SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1075 Nicholls FM dismissed that application. The point is made that the previous application claimed a denial of natural justice and both actual and apprehended bias and His Honour dealt with those claims.

5. The applicant appealed to the Full Court of the Federal Court and his appeal was dismissed on 7^th March 2005.  The reference to that is SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283. The applicant made two applications for special leave to appeal to the High Court of Australia. The first, made on 4^th April 2005, was deemed to be abandoned on 2^nd May of that year for failure to comply with the Rules.  The second made on 27^th May 2005 was dismissed on 8^th September 2005. 

6. These proceedings were commenced on 29^th September 2005, seeking a review of the same decision.  The applicant when asked about this relied on his written outline of submissions and also denied that these proceedings were an abuse of process, because he told the Court that he believed in all of his case. 

7. The fact is that there are a number of difficulties with the applicant's case. First of all, it is out of time. It is not competent under s.477 of the Migration Act because it is made well outside the time for review provided by that section. Second, there is nothing for the Court to review because the decision is a privative clause decision and it has been held to be one and that decision has been upheld on appeal. Those proceedings have been decided. Even if a fresh ground were argued, in my view the doctrine of Anshun estoppel as set out in

   
   Port of Melbourne Authority v Anshun Pty Ltd

   (1981) 147 CLR 589 would apply. The general situation of course is that the doctrine of res judicata operates. There has been a final judgment by a judicial Tribunal acting within its jurisdiction and these proceedings raise the same cause of action, an application to review a decision of the Refugee Review Tribunal.

8. In my view there is no coincidence between the date of dismissal of the second application for leave to appeal to the High Court of Australia on 8^th September and the filing of this application on 29^th September 2005.  The obvious inference is that these proceedings are being commenced for a collateral purpose, namely the continuation of a bridging visa, so that it was necessary to commence fresh proceedings within 28 days of the last Court appearance held and dealt with.  To that extent the applicant appears to have been successful as these proceedings were filed on 29^th September and have not been heard until today 20^th April 2006. 

9. They will however come to an end today because this is quite clearly an abuse of process and the application will be dismissed on that basis and it will be dismissed with costs.

10. This is an application for costs in an abuse of process and in my view if ever there is an application that calls for a costs order it is an abuse of process.  The amount sought of costs on a party and party basis is in the sum of $3,800.00 and I am of the view that that is reasonable.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  28 April 2006