SZFQB v Minister for Immigration
[2008] FMCA 1010
•21 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFQB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1010 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant attempting to relitigate Tribunal decision already found to be free of jurisdictional error – application dismissed as an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| SZFQB v Minister for Immigration & Anor [2007] FMCA 1518 SZFQB v Minister for Immigration & Anor [2008] HCASL 301 |
| Applicant: | SZFQB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1724 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 21 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTERLOCUTORY ORDERS
There be an immediate hearing on the issues raised in the Minister’s response as well as an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,200.
No further application by this applicant to review in this Court any migration decision relating to the applicant’s protection visa application lodged on 6 May 2004, including the decision of the delegate on 14 May 2004 and the decision of the Refugee Review Tribunal handed down on 13 February 2007 or any notification of those decisions, be accepted for filing in this Court except by leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1724 of 2008
| SZFQB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me a show cause application filed on 7 July 2008.
The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on
13 February 2007. I also have before me an affidavit filed in support of the application. The affidavit gives the applicant's personal and litigation history and attaches the decision of the Tribunal.
The applicant asserts that he needs an extension of time for the filing of his present application. That appears not to be correct because there is no evidence that the applicant was at any time personally given a copy of the Tribunal decision. It appears that a copy of the decision was sent to the applicant in the post after the decision was handed down.
The Minister does not rely on s.477 of the Migration Act 1958 (Cth). Rather, the Minister filed a response on 14 July 2008 in which the Minister drew attention to earlier legal proceedings in this Court, in the Federal Court and in the High Court concerning this Tribunal decision. The Minister seeks the summary dismissal of the application on the basis of either res judicata, estoppel or Part 13 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The response is supported by the affidavit of Bernadette Marie Rayment made on 14 July 2008. I received that affidavit and I incorporate as background paragraphs 4 through to 16 of it:
On 6 May 2004, the applicant lodged an application for a protection (Class XA) visa with [the Department of Immigration and Citizenship] (“DIAC”).
On 14 May 2004, a delegate of the First Respondent made a decision refusing to grant the applicant a protection visa.
On 2 June 2004, the applicant lodged an application for review of the decision of the delegate of the First Respondent with the [Tribunal].
On 14 January 2005, the [Tribunal] handed down a decision affirming the decision of the delegate of the First Respondent.
On 1 February 2005, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia to review the [Tribunal] decision handed down 14 January 2005. Those proceedings were numbered SYG272 of 2005.
On 13 October 2006, the Honourable Federal Magistrate Driver made orders remitting the matter to the [Tribunal].
On 13 February 2007, the [Tribunal] handed down a decision affirming the decision of the delegate of the First Respondent.
On 7 March 2007, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia to review the [Tribunal] decision handed down on 13 February 2007. Those proceedings were numbered SYG785 of 2007.
On 14 September 2007, the Honourable Federal Magistrate Cameron dismissed the application with costs. …
On 2 October 2007, the applicant filed a notice of appeal in the Federal Court of Australia against the orders and judgment of Federal Magistrate Cameron dated 14 September 2007. Those proceedings were numbered NSD1971 of 2007.
On 13 February 2008, the Honourable Justice Bennett ordered that the notice of appeal be dismissed with costs. …
On 6 March 2008, the applicant filed an application for special leave to appeal in the High Court of Australia seeking leave to appeal against the orders and judgment of Justice Bennett dated 13 February 2008. Those proceedings were numbered S53 of 2008.
On 5 June 2008, the Honourable Justices Gleeson and Heydon ordered that the application for special leave to appeal be dismissed. …
I invited the applicant to tell me why he should be permitted to re‑litigate in this Court the issues that have already been dealt with. Having heard him, I am satisfied that the present application raises nothing new. In the event that I am wrong in that, the applicant could have raised any of the issues he now seeks to raise in the earlier legal proceedings. He tells me that he is afraid to return to Bangladesh although he misses his family there but he has not sought ministerial intervention. It appears that the applicant is using the courts for a purpose that would be better served by an application for ministerial intervention.
It is arguable that the Court has no jurisdiction in this matter on the basis that the Tribunal decision has already been found conclusively to be a privative clause decision. In dismissing the application before him, his Honour Cameron FM said at [21][1]:
[1] SZFQB v Minister for Immigration & Anor [2007] FMCA 1518
Jurisdictional error on the part of the Tribunal has not been demonstrated.
In dismissing the appeal from that decision, her Honour Bennett J said at [11][2]:
I have not discerned jurisdictional error on the part of the Tribunal nor error on the part of the Federal Magistrate.
[2] SZFQB v Minister for Immigration [2008] FCA 77
As I have already noted, the High Court refused the application for special leave to appeal[3]. It appears to me probable that the principle of res judicata applies in this matter; so does the principle of issue estoppel. Further, and perhaps more importantly, the present application is an abuse of this Court's process. By seeking again to have this Court deal with issues that have already been dealt with by the Court and on appeal the applicant is improperly occupying the Court's time and vexing the Minister.
[3] SZFQB v Minister for Immigration & Anor [2008] HCASL 301 at [4]
I will dismiss the application pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.
The application having been dismissed and an abuse of process having been found, the Minister is entitled to costs on an indemnity basis. Ms Palmer, for the Minister, has identified those costs in the sum of $1,200. I accept that estimate. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,200.
I will further order that no further application by this applicant to review in this Court any migration decision relating to the applicant’s protection visa application lodged on 6 May 2004, including the decision of the delegate on 14 May 2004 and the decision of the Refugee Review Tribunal handed down on 13 February 2007 or any notification of those decisions, be accepted for filing in this Court except by leave of a Federal Magistrate.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 July 2008
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