SZEDA v Minister for Immigration & Anor - [2009] FMCA 451

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEDA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 451

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.

PRACTICE & PROCEDURE – Summary dismissal.

Migration Act 1958 (Cth), ss.424A, 476

SZEDA v Minister for Immigration & Anor [2008] FMCA 754
SZEDA v Minister for Immigration & Citizenship & Anor (2009) HCASL 67
S1090 of 2003 v Minister for Immigration & Anor [2008] FMCA 1017

Applicant:

SZEDA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 927 of 2009

Judgment of:

Scarlett FM

Hearing date:

11 May 2009

Date of Last Submission:

11 May 2009

Delivered at:

Sydney

Delivered on:

11 May 2009

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The Application for review of the decision of the Refugee Review Tribunal signed on 16 August 2007 and handed down on 28 August 2007 (RRT reference no. 071367249) is dismissed as an abuse of the process of the Court.
The Applicant is to pay the First Respondent’s costs on an indemnity basis in the sum of $1,300.00.
I allow 3 months to pay.
No further application for review of the decision of the Refugee Review Tribunal signed on 16 August 2007 and handed down on 28 August 2007 is to be accepted for filing without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 927 of 2009

SZEDA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The application before the court is an interlocutory application seeking summary dismissal of the substantive application filed by the applicant. The applicant commenced proceedings on 21 April 2009 seeking judicial review of a decision of the Refugee Review Tribunal signed on 16 August and handed down on 28 August 2007. He claims that the Tribunal breached s.424A of the Migration Act and failed to follow the proper procedures. His second ground is that the Tribunal fell into jurisdictional error.
In his application he seeks a new hearing by the RRT and an order for costs. He applied for an extension of time under the provisions of s.477 of the Migration Act. In his application he has set out the previous court proceedings and has referred to an application having been made in the Federal Magistrates Court and proceedings in the Federal Court and the High Court. The applicant has provided no details of the proceedings in the High Court of Australia.
The first respondent, the Minister for Immigration & Citizenship, filed an application in a case and an affidavit in support. The application in a case seeks that the substantive application or application for an extension of time should be dismissed generally under the provisions of r.13.10 of the Federal Magistrates Court Rules 2001 in that
a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or,
b)the proceeding or claim for relief is frivolous or vexatious or
c)the proceeding or claim for relief is an abuse of the process of the court.
The Minister, who is the first respondent, also seeks an order that the registry of the court be directed that no further application for review of the decision of the Refugee Review Tribunal or for review of the decision of the delegate made on 22 March 2004 should be accepted for filing without prior leave of the court.
The basis of the application is set out in the affidavit in support affirmed by Greg Johnson, solicitor, on 5 May 2009. The affidavit was filed that same day. The first respondent seeks dismissal of the application for review of the Tribunal decision on the basis that the decision has already been reviewed. The Federal Magistrates Court heard the application for review on 30 May 2008 and dismissed it. The applicant appealed against that decision and on 9 October 2008 Cowdroy J in the Federal Court dismissed the appeal. The applicant then sought special leave to appeal to the High Court of Australia. Heydon and Bell JJ dismissed that application on 1 April 2009. The applicant then commenced these proceedings. That then is the basis for the application.
The history generally is set out in Mr Johnson's affidavit and the proceedings started when the applicant applied for a Protection (Class XA) visa on 2 February 2004. A delegate of the first respondent Minister refused that application on 22 March 2004 whereupon on 14 April the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the delegate's decision and the applicant then sought judicial review. That application was dismissed. The Federal Magistrates Court dismissed the application in proceedings SYG 2461 of 2004. I note that I heard that application and dismissed it. I do not consider that there is any impediment to my hearing this application as it does not relate to that decision of the Refugee Review Tribunal.
What then happened is that the applicant appealed against the decision of this court and orders were made by consent remitting the matter to the Refugee Review Tribunal for reconsideration. The applicant again attended a hearing of the Refugee Review Tribunal. That Tribunal affirmed the delegate's decision. That decision was set aside by the Federal Magistrates Court on 16 April 2007 when Nicholls FM made orders by consent issuing writs of certiorari and mandamus. The applicant then attended a further hearing of the Refugee Review Tribunal, a third hearing. That Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa. The applicant sought judicial review of that decision by means of an application filed in this court on 21 September 2007. That application claimed that the Tribunal constructively failed to exercise its jurisdiction and the Tribunal did not follow proper procedures.
The application was heard by Smith FM on 30 May 2008. In an extempore decision his Honour dismissed the application with costs (SZEDA v Minister for Immigration & Anor [2008] FMCA 754). The applicant then appealed against that decision by means of a notice of appeal filed on 19 June 2008. In the notice of appeal the applicant claimed:
(1)a breach of procedural fairness,
(2)an error of law on the RRT decision and
(3)a breach of s.424A of the Migration Act.
The appeal was heard by Cowdroy J and dismissed with costs on 9 October 2008. In that appeal his Honour noted that the Federal Magistrate had addressed the question of breach of s.424A of the Migration Act and found that there was no such obligation under that particular section. After the appeal was dismissed on 9 October 2008, the applicant then sought special leave to appeal from the High Court of Australia. That application was made on or about 12 November 2008. On 1 April 2009 in the High Court of Australia their Honours Heydon and Bell JJ dismissed the application for special leave (see SZEDA v Minister for Immigration & Citizenship & Anor (2009) HCASL 67). On 21 April 2009 the applicant commenced these proceedings, again seeking review of the decision of the Refugee Review Tribunal.
He sought to file in court an affidavit and a statutory declaration which was marked as annexure A to his affidavit. In his affidavit the applicant claimed at para.4:
I have reasonable grounds to lodge the application and to proceed with the case to seek proper orders of this court. B. The proceedings before this court or claims for relief that were sought in the application are not frivolous or vexatious. It was filed with sufficient reasons and the reasons are set out in an additional document and is marked "A" and annexed hereto. C. I never intended to waste the time of this court and I am only seeking to get a fair and just approach in findings for my application.
In the affidavit the applicant seeks the following orders:
a)Adjourn and fix a date for final hearing of the application and order for new hearing by RRT. Rule 10.2, 10.3.
b)Direct and allow reasonable time to collate and submit additional information and documents under r.10.1.
c)Arrange for legal assistance - representation.
d)Costs.
e)Other remedies as the court deems fit and proper.
The applicant was asked at the hearing today what additional information and documents were the subject of the application to allow reasonable time to collate and submit. He advised that the additional information was that set out in his statutory declaration or affidavit - the heading is ambiguous - that was marked as annexure A. When asked to explain what he meant by arranging for legal assistance or representation the applicant said that he sought to obtain further legal advice from a lawyer on the RRT legal panel or to obtain representation from the Legal Aid Commission of New South Wales. It was made clear to the applicant that as his application for review had already been dealt with and had been the subject of legal advice from a lawyer on the RRT panel previously, a fact with which the applicant agreed, that he was not entitled to further advice from the panel. If he sought a grant of legal aid from the Legal Aid Commission of New South Wales, then he should have applied for it prior to this. It was pointed out to him that the Legal Aid Commission applies a merits test to applications for legal aid.
The document entitled "Annexure A" refers to country information considered the Refugee Review Tribunal. In paras.3 through to 14 the applicant set out information relating to alleged breaches of human rights in India and referred to his refugee claim as an ex-suspect of violence or protest organiser as MDMK and a supporter of DMK. The annexure goes on to record at para.6 that both the Department of Immigration and Citizenship and the Refugee Review Tribunal are required to revise their decisions based on procedural errors and submission of recent developments between 2007 and 2009 of MDMK and Tamil Nadu politics that have fallen into further turmoil over the Tamils suffering in Sri Lanka. Paragraph 7 refers to recent political developments in Tamil Nadu. The following paragraphs go on to summarise the difficult political situation in Tamil Nadu and in Sri Lanka. Paragraph 15 of the annexure claims that both the Refugee Review Tribunal and the Department of Immigration and Citizenship have not taken adequate consideration for reasonably foreseeable political turmoil and violence in Tamil Nadu, Tamil Elam and Sri Lanka. Paragraph 16 attacks the RRT decision by saying:
The RRT had only concentrated on issue of defending DIAC's decision who had not considered my age, qualifications, skills and the service that I could offer to Australia categorised under unique and exceptional circumstances ministerial intervention schemes protection visa.
The annexure then goes on in para.17 to claim:
The RRT now has the obligation to consider my assimilation into the community in Australia in the past five years where I've provided my technical services, earned income and paid income tax to Australian Tax Office. Evidence could be provided, if required.
The applicant told the court that he had brought a friend who would speak on his behalf. I considered the application and decided to allow his friend, a Mr Indra Kumaram, to address the court on this issue. Mr Kumaram indicated that he was not a lawyer but he was an engineer by profession. He told the court that he felt that the third Refugee Review Tribunal, whose decision is the subject of this application, had not taken into fair consideration the matters set out in annexure A. He told the court that this application is different from the previous application because the applicant was seeking a remedy under a different section. When asked what that section was he said it was s.476 of the Migration Act 1958. At this stage Ms Weston, solicitor who appeared for the Minister, drew the court's attention to the applicant's previous application for review of the same decision, which was filed on 21 September 2007 and at page 2 of that application appears the statement that the applicant applies for an order that the respondent show cause why a remedy should not be granted in exercise of the court's jurisdiction under s.476 of the Migration Act 1958.
The applicant's friend told the court that the previous application had been made under s.475 of the Act, which was clearly incorrect. He told the court that the Tribunal had not taken into consideration country matters and was asking that the court should consider the subsequent information set out in the annexure A. When it was put to him that the Tribunal decision had already been the subject of judicial review by the Federal Magistrates Court and an appeal against that decision had been dismissed by Cowdroy J and an application for special leave to the High Court of Australia had been dismissed the applicant's friend submitted that the Federal Magistrates Court was given the same powers as the High Court of Australia. He also submitted that the reason why these issues had not been previously argued was that the applicant had not had his assistance prior to this time. I am not of the view that that is necessarily an advantage.
Ms Weston, who appeared for the Minister, submitted that the application should be summarily dismissed on the basis that the application for review of the decision of the Tribunal had already been heard and dismissed by Smith FM and had been found to be without error by the Federal Court and an application for special leave to appeal had been refused. She submitted correctly that res judicata operates. She also submitted that seeking a further review of a decision that had already been reviewed was an abuse of process and referred the court to the decision of Emmett FM in S1090 of 2003 v Minister for Immigration & Anor [2008] FMCA 1017.
In my view, the substantive application is entirely without merit and the submissions are misconceived. The applicant is seeking review of a decision of the Refugee Review Tribunal that has already been reviewed by this court. The matter was heard by Smith FM and dismissed. An appeal against that decision was heard by Cowdroy J and the appeal was dismissed. An application for special leave to appeal to the High Court of Australia was dismissed. What the applicant has then done is turn around and attempt to start again in this court.
The grounds upon which it is sought to rehear the application are spurious and misconceived. It is not a fact that this application is brought under an entirely new section of the Migration Act, s.476. As Ms Weston pointed out, the previous application was brought under s.476 of the Migration Act. Section 476 in its present form came into operation on 1 December 2005 and the earlier application to this court was filed on 21 September 2007. The applicant seeks to have the decision reconsidered because of (1) a claim that the Tribunal did not consider the factual matters sufficiently and (2) that subsequent information has come to light which could cause the matter to be reconsidered. The fact is that this court conducting judicial review has no power to undertake the task of merits review. It is of no avail to an applicant to claim that the Tribunal made an incorrect decision on the factual matters before it. It is even less valid to claim that the Tribunal should reconsider its decision because of fresh factual material that has become available. There may well be fresh factual material, but that does not indicate that the Tribunal when considering its decision fell into jurisdictional error. It could not fall into jurisdictional error by failing to consider material that had not been put before it or had not come into existence. That ground of review, if such it be, is entirely misconceived. The fact that the applicant's friend was not available to give him assistance on a previous occasion is not a matter to which the court can give any weight at all, except to comment that the applicant's friend has assisted the applicant to prepare documents that contain arguments that are of no weight in the circumstances.
The application, as I said, is entirely misconceived, is an application without merit. It is an abuse of the process of court. In SZ1090 of 2003 v Minister for Immigration & Anor[1] Emmett FM said at 19:
Counsel for the first respondent submitted that the court ought to make such an order in this case where the applicant has exhausted every right of appeal in respect of Scarlett FM's judicial review of the Tribunal's decision. The applicant appealed to the Federal Court and the High Court. The applicant's appeals to the Federal Court and the High Court were dismissed. In the circumstances, to file an application seeking to litigate the same issue with the same party and in respect of which there is a res judicata the order is appropriate.
[1] [2008] FMCA 1017
Her Honour ordered that no further application by the applicant for review of the decision of the Tribunal in that case or by the delegate should be accepted for filing in this court except with leave of the court. I would comment to avoid confusion that her Honour coincidentally was dealing with a further application for review where the first application had been heard by me on 11 April 2006.
The fact is this application is an abuse of process. The court should take steps to prevent an abuse of its process because these proceedings have clearly been commenced for a spurious reason and the application should be dismissed. In my view, it is appropriate that an order for costs should be made on an indemnity basis. It is appropriate also that an order should be made that no further application for review of the decision of the Refugee Review Tribunal should be accepted for filing without leave of the court. It has been submitted on behalf of the applicant that an amount of $1300 for costs, which is the amount sought by the Minister, would create a considerable difficulty as far as payment is concerned. That may well be, but that is not a reason for not making an order for costs. I take it into account, however, in allowing time to pay and I will order that the applicant has three months to pay the costs. I am satisfied that the sum of $1300 is entirely reasonable in the matter. Accordingly, the substantive application will be dismissed. The applicant is to pay the first respondent's costs on an indemnity basis fixed in the sum of $1300. I allow three months to pay. No further application for review of the decision of the Refugee Review Tribunal signed on 16 August 2007 and handed down on 28 August 2007 is to be accepted for filing without leave of the court.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 13 May 2009