SZFXH v Minister for Immigration
[2005] FMCA 746
•27 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFXH v MINISTER FOR IMMIGRATION | [2005] FMCA 746 |
| MIGRATION – Notice of motion that the proceedings be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules – whether the application is incapable of being heard because of the doctrine of res judicata or alternatively the doctrine of issue estoppel, or the doctrine of Anshun estoppel – where the application was lodged outside the time limit – whether the application is incompetent. |
| Federal Magistrates Court Rules 2001, Rule 13.10 Migration Act 1958, s.477(1A) |
| Dranichnikov v The Ministerfor Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 SZATG v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 |
| Applicant: | SZFXH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 659 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 May 2005 |
| Date of Last Submission: | 27 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2005 |
REPRESENTATION
| Solicitors for the Respondent: | Blakes Dawson Waldron |
ORDERS
The substantive proceedings are dismissed as incompetent.
The applicant not be permitted to institute any proceedings in this court seeking review of a decision handed down by the Refugee Review Tribunal on 9 December 2002, without first obtaining the leave of this court.
The applicant pay the respondent's costs of the proceedings and of this notice of motion, which I assess in the sum of $1500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 659 of 2005
| SZFXH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings before me today are the hearing of a notice of motion filed by the respondent Minister on 6 May 2005, seeking that the substantive application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules, on the basis that (a) the proceeding is frivolous or vexation; or (b) the proceeding is otherwise an abuse of process. Certain other orders are also requested relating to future filings by this applicant. The substantive grounds upon which the Minister proceeds are, in fact, that the application for review, itself, is incapable of being heard because of the doctrine of res judicata or, alternative and additionally, the doctrine of issue estoppel, or the doctrine of Anshun estoppel. There is a further argument that the application having been lodged outside the time limit permitted by section 477(1A) of the Migration Act 1958, is incompetent.
According to an affidavit of Susan Goodman sworn on 13 May 2005, the procedural history is as follows. The Refugee Review Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa on the 9 December 2002. On 10 February 2003, the applicant applied to the Federal Court for review of that decision. On
7 March 2003, Beaumont J, ordered that the proceedings be transferred to the Federal Magistrates Court where it was heard by Federal Magistrate Driver on 24 July 2003. His Honour found at [7]:
“There is no jurisdictional error apparent on the record of the RRT decision.”
On 12 August 2003 the applicant filed a notice of appeal in the Federal Court and his appeal was heard by Tamberlin J on 15 December 2003. His Honour considered all the matters raised by the applicant before Federal Magistrate Driver and at the Tribunal, and concluded that the decision of the Tribunal had been one on credibility, which was a finding of fact. At [13] his Honour stated:
“Accordingly, for the above reasons I am not persuaded that the applicant has any entitlement to succeed on the appeal because no error of law has been pointed to.”
On 12 January 2004, the applicant filed an application for special leave to appeal to the High Court. On 3 March 2005, his application for special leave was dismissed by McHugh and Haydon JJ. On 16 March 2005, the applicant filed a second application, being this application, in this court, again seeking review of the Tribunal decision of 9 December 2002. It seems to me quite clear that these proceedings are doomed to failure by virtue of the doctrine of res judicata. The applicant has not suggested that the judgments of three courts of the Commonwealth of Australia were obtained by fraud. What he did say was that none of the judges that heard his cases had asked for a transcript of the hearing before the Tribunal. But as Kirby J said in Dranichnikov v The Ministerfor Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at [98]:
“The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present facts and leave it to the Tribunal to search out and find any available basis which theoretically the Act provides for relief. This court has rejected that approach of the Tribunal's duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances;”
In SZATG v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595, Hely J at [36] said:
“It was for the applicant to put forward the information and materials on which he relied in support of his claims.’
If the applicant believed that there was something in the transcript that would indicate some jurisdictional error on the part of the Tribunal, it was his duty to provide the transcript and in the absence of such evidence, there is nothing the court can do to assist. The applicant also told me that the Tribunal offered to translate certain documents for him, but did not do it. He has provided this court with an affidavit, which contains those documents. They are all written in Bengali. Once again, there is no evidence that the Tribunal made a promise to the applicant which it did not keep and I cannot make a finding which would have the effect of reopening a case that has already gone as far as the High Court, on the basis of such an unsubstantiated submission.
As things stand at present, there have been findings against this applicant that the decision he complains about was not made in jurisdictional error. In those circumstances, section 477(1) of the Migration Act would apply, and the applicant was well outside the period of 28 days from the handing down of that decision when he filed this application to this court. For that reason the application is incompetent in any event. Regrettably, the continued filing of applications after hearings that have delved into the validity of Tribunal decisions has become more prevalent. The existence of this practice has been used to justify the threat of legislation that might do harm to Australia's reputation as a country at the forefront of the upholding of human rights. Such protection as the court can give against abuse of its processes should be given. I would, therefore, agree to make an order of the type asked for by the respondent preventing the applicant from bringing a further case in this court.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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