SZEYK v Minister for Immigration
[2007] FMCA 2095
•7 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2095 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Migration Act 1958 (Cth) ss.420; 424A; 425 |
| Somanader & Ors v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 Rogers v The Queen (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378 |
| Applicant: | SZEYK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3491 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 December 2007 |
| Date of last submission: | 7 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2007 |
REPRESENTATION
| Applicant appeared in person with Bengali interpreter |
| Solicitors for the Respondent: | Ms E. Warner Knight, Australia Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3491 of 2007
| SZEYK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant lodged an application for a protection visa on 24 June 1996 which was refused by a delegate of the relevant department at the time on 14 August 2003.
On 22 June 2004, the applicant lodged an application for a review of the delegate’s decision with the Refugee Review Tribunal.
On 23 March 2005, by consent, the Refugee Review Tribunal’s decision of 22 June 2004 was remitted for determination according to law.
On 27 October 2005, the Refugee Review Tribunal, differently constituted, handed down a decision affirming the decision of the delegate.
On 24 November 2005, the applicant filed an application in this Court seeking judicial review of that Tribunal’s decision.
The application for judicial review was dismissed by Scarlett FM on the basis that the Tribunal’s decision was not affected by jurisdictional error and is therefore a privative clause decision.
It is clear from Scarlett FM’s decision that the grounds raised before him included an allegation of a failure to comply with s.424A of the Migration Act 1958 (Cth) (“the Act”); an allegation that the Tribunal ignored relevant material or failed to take into account relevant considerations; an allegation that the Tribunal’s decision was vitiated by apprehended bias; and, an allegation that the applicant was denied natural justice and procedural fairness pursuant to ss.420 and 425 of the Act.
On 27 October 2006, an appeal was lodged by the applicant from the decision of Scarlett FM and, on 16 February 2007, Lander J of the Federal Court dismissed the appeal.
On 5 June 2003, the applicant filed an application for special leave from the decision of the Federal Court with the High Court of Australia and on 8 November 2007 Hayne J refused leave on the basis that there was no reason to doubt the correctness of the conclusions reached in the Courts below.
In the circumstances, the applicant has exhausted all appeal rights in respect of judicial review of the Tribunal’s decision and the first respondent submits that it is an abuse of the Court’s process for the applicant to file a further application, as he did on 12 November 2007, seeking judicial review of that same decision.
The grounds identified in the application filed on 12 November 2007 are relatively unclear and discursive.
The applicant appeared unrepresented before me this morning, although had the assistance of an interpreter.
I asked the applicant whether or not there was any further ground that he had raised in this application that had not been raised by him in the Courts below. The applicant sought to hand to the Court a transcript of the Tribunal hearing and invite the Court to search through that transcript for error. I explained to the applicant that it was not the role of the Court to accept documents and then to be obliged to search for their relevance. However, if there was any particular submission that the applicant wished to make he had the opportunity to do so.
The applicant said that he needed more time to obtain legal advice. Whilst the applicant did not make a formal application for an adjournment, to the extent that he was intending to make such an application, an adjournment was refused. The applicant has had ample time to obtain whatever advice he wished in respect of judicial review of the Tribunal’s decision and indeed the applicant was represented by counsel at the first judicial review proceeding before Scarlett FM.
In the circumstances, there is a res judicata or issue estoppel (Somanader & Ors v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 per Merkel J at 686-693; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]-[39]) between the parties in respect of the issue of whether or not the decision of the Tribunal is a privative clause decision because it is affected by jurisdictional error. There is no new issue raised by the applicant. The grounds identified by the applicant in his present application are substantially the same as those grounds that were the subject of judicial review in the prior proceedings.
In the circumstances, it is an abuse of this Court’s process for the applicant to have filed his application seeking further judicial review of the same decision. The repeated bringing of similar applications is unjustifiably vexatious and oppressive and is likely to bring the administration of justice into disrepute and I refer to Walton v Gardiner (1993) 177 CLR 378 at 393 and Rogers v The Queen (1994) 181 CLR 251 at 255-256.
In the circumstances, the application before this Court is an abuse of process and the proceeding is dismissed with costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: E. Maconachie
Date: 13 December 2007
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