SZFIR v Minister for Immigration
[2008] FMCA 365
•25 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFIR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 365 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – application incompetent and an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.474 |
| Blair v Curran (1939) 62 CLR 464 SZFIR v Minister for Immigration [2007] FCA 424 |
| Applicant: | SZFIR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 507 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 25 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 March 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Phillips Fox |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent and pursuant to rules 13.10(a), 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by this applicant to review the decision of the Refugee Review Tribunal handed down on 14 March 2006 or the decision of the delegate that preceded it or any notification of the decision of the delegate or decision of the Refugee Review Tribunal be accepted for filing by this Court except by leave of a Federal Magistrate.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 507 of 2008
| SZFIR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 3 March 2008 to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 14 March 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had claimed political persecution. The applicant was unsuccessful in persuading the Tribunal of his political profile.
The application to this Court is supported by the applicant's own affidavit filed on 3 March 2008 in which he sets out both factual assertions and legal submissions. Those legal submissions deal in large part with the merits of the Tribunal decision.
A preliminary objection to the application was raised in the Minister's response filed on 19 March 2008. The Minister seeks orders summarily dismissing the application on the basis that it is frivolous, or vexatious, or an abuse of process, having regard to the facts that the Tribunal decision has been previously reviewed by this Court and on appeal by the Federal Court and that special leave to appeal was refused by the High Court.
The Minister's response is supported by the affidavit of Katherine Nicole Hooper filed on 19 March 2008. I agreed to deal with the Minister's response today. Additional background material is set out in paragraphs 3 to 9 of the Minister's outline of written submissions filed on 19 March 2008:
The applicant is a male citizen of Bangladesh who arrived in Australia on 15 February 2004. The applicant applied for a Protection (Class XA) visa on 18 March 2004 and a delegate of the first respondent refused that application on 18 May 2004.
The applicant sought review of the delegate's decision by application to the Tribunal lodged on 8 June 2004. The Tribunal as constituted (the first Tribunal) affirmed the decision under review. On 14 November 2005, by consent orders in the Federal Magistrates Court, the first Tribunal’s decision was quashed and the matter remitted for reconsideration according to law.
The Tribunal on the remittal (the Tribunal) again affirmed the decision under review refusing to grant the applicant a protection visa. Its decision was signed on 21 February 2006 and handed down on 14 March 2006 (Tribunal reference number N05/52753).
The applicant sought judicial review of the Tribunal’s decision by application filed in the Federal Magistrates Court on 11 April 2006 and amended on 28 June 2006. On 21 September 2006 Federal Magistrate Smith ordered, inter alia, that the application be dismissed.[1]
The applicant appealed against the judgment of Federal Magistrate Smith by notice of appeal filed in the Federal Court on 9 October 2006. On 27 March 2007 Justice Collier ordered, inter alia, that the appeal be dismissed.[2]
The applicant sought special leave to appeal to the High Court of Australia against the judgment of Justice Collier by application filed on 23 April 2007. On 7 February 2008 Justices Hayne and Crennan ordered that the application for special leave be dismissed.[3]
The present application, filed in this Court on 3 March 2008, seeks judicial review of the same decision of the Tribunal of which review has already been sought. That is, the decision signed on 21 February 2006 and handed down on 14 March 2006 (Tribunal reference number N05/52753).
[1] SZFIR v Minister for Immigration & Anor [2006] FMCA 1451
[2] SZFIR v Minister for Immigration [2007] FCA 424
[3] S186/2007
Those facts are dealt with in more detail in Ms Hooper's affidavit which I received and accept.
The Minister seeks summary dismissal pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) which provide for such dismissal where the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim, or where the proceeding or claim for relief is frivolous or vexatious or where the proceeding or claim for relief is an abuse of the process of the Court. The Minister's submissions in relation to those matters are set out in paragraphs 11 to 16 of the written submissions:
The applicant's application to this Court alleges that the RRT's decision is affected by various jurisdictional errors. In his Honour's judgment of 21 September 2006, Smith FM found that the applicant's grounds of review were not made out, and that the decision of the RRT was a privative clause decision within section 474(1) of the Act. The application heard by Smith FM was the foundation for the applicant's subsequent appeal proceedings.
The first respondent submits that the applicant's present application is bound to fail because his claims for judicial review on the basis of the commission of jurisdictional error by the RRT have already been finally determined and cannot be litigated again.[4] Further, the applicant is estopped from bringing any claims or grounds which were or could have been previously raised, and which were or could have been decided in the previous proceedings.[5]
The applicant has exhausted all rights to judicial review of this RRT decision without success. As such it is submitted that the present application is an abuse of the process of the Court, and is frivolous and vexatious. It is trite to say that there must be an end to litigation. It would be an abuse of process to allow a party to litigate repeatedly matters that have been finally determined by the Court: Wong v MIMIA (2004) 204 ALR 722 at [36] per the Full Court.
The first respondent notes that an affidavit has been filed in support of the present application and submits that the applicant has advanced no conceivable basis upon which to support his application and has provided no justification for commencing proceedings anew in the Federal Magistrates Court after the failure of his previous judicial review proceedings.
The first respondent seeks an order that the registry of the Federal Magistrates Court be directed that no further application for review of the decision of the Refugee Review Tribunal signed on 21 February 2006 and handed down on 14 March 2006 (RRT reference number N05/52753), or for review of the decision of the delegate of the first respondent dated 18 May 2004, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa lodged by the applicant on 18 March 2004 shall be accepted for filing without prior leave of the Court.
The first respondent respectfully submits that such an order is within the power of this Court: SZDCJ v MIMIA (2004) 212 ALR 581; [2004] FCA 1500 at [27] and [29] per Jacobson J.
[4] See generally Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J.
[5] See generally Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356; Somanader v Minister for Immigration & Multicultural Affairs[2000] FCA 1192
Before considering those submissions I need to consider whether this Court has any jurisdiction to entertain the application at all. The Court's jurisdiction is subject to s.474 of the Migration Act 1958 (Cth) (“the Migration Act”) which, on its face, purports to preclude judicial review of Tribunal decisions, among other decisions. As has been found by the High Court[6] the privative clause does not preclude judicial review where the decision subject to review is infected with jurisdictional error. As I have said on several occasions previously, however[7], where it has been conclusively found previously that a decision is free from jurisdictional error and is thus a privative clause decision, by reason of the operation of s.474, this Court has no remaining jurisdiction.
[6] Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
[7] SZBZF v Minister for Immigration & Anor [2006] FMCA 145, affirmed in SZBZF v Minister for Immigration & Anor [2006] FCA 471
The grounds of review set out in the present application before the Court are broadly similar to those in the application that came before Smith FM. His Honour considered those claims in detail in his decision reported as SZFIR v Minister for Immigration & Anor [2006] FMCA 1451. His Honour found no substance to the grounds of review advanced. At [28] his Honour found that the Tribunal decision is a privative clause decision within s.474(1) of the Migration Act and that he must dismiss the application. The decision of Smith FM is not binding upon me but it is highly persuasive. His decision was considered in detail on appeal by the Federal Court. The applicant also sought to raise before the Federal Court additional grounds that had not been raised before this Court.
The Federal Court in its decision reported as SZFIR v Minister for Immigration [2007] FCA 424 dismissed all of the grounds of appeal against the decision of this Court and did not give leave for the additional grounds to be argued and determined by that Court. Read as a whole, I regard the decision of the Federal Court as affirming the proposition that the decision of the Tribunal is a privative clause decision. The decision of the Federal Court is of course binding upon me.
The applicant sought special leave to appeal to the High Court[8] from the decision of the Federal Court and that leave was refused. In refusing leave Hayne J said:
The applicant's case in the Federal Court differed in some respects from the case sought to be made in the Federal Magistrates Court and the arguments that the applicant would seek to advance in this Court are again different in some respects from what has been urged below. None of the arguments advanced, whether in this Court or in the courts below, would enjoy prospects of success sufficient to warrant a grant of special leave.
[8] SZFIR v Minister for Immigration & Anor [2008] HCATrans 63
I take that statement as reflecting satisfaction on the part of the High Court with the findings of this Court and the Federal Court which, read together, establish in my view conclusively that the decision of the Tribunal is a privative clause decision. On that basis, s.474 of the Migration Act deprives this Court of any further jurisdiction to entertain the application presently before the Court. Should I be wrong in that, I agree with and adopt the Minister's submissions in relation to the operation of rule 13.10 of this Court's Rules.
The applicant is not raising anything new in his present application. The issues have been dealt with previously and disposed of adversely to him. He has been unsuccessful on appeal in the Federal Court and unsuccessful in seeking special leave in the High Court. It is clear, in my view, that he has no reasonable prospect of successfully prosecuting his present application. Further, by returning to Court and seeking to re-agitate a matter that has already been dealt with by the Courts the applicant is engaging in frivolous and vexatious conduct. The repeated vexing of the Minister by applications seeking to re‑agitate matters that have already been disposed of by the Courts is an abuse of this Court's process. The Court should take steps to ensure that such abuses are not repeated.
I will order that the application be dismissed as incompetent and pursuant to rules 13.10(a), 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
I will further order that no further application by this applicant to review the decision of the Refugee Review Tribunal handed down on 14 March 2006 or the decision of the delegate that preceded it or any notification of the decision of the delegate or decision of the Refugee Review Tribunal be accepted for filing by this Court except by leave of a Federal Magistrate.
The application having been dismissed summarily, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $1,000. That is consistent with the scale of costs in the Court Rules for a migration proceeding that is disposed of at or before the first court date. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 March 2008
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