SZGAD v Minister for Immigration
[2005] FMCA 748
•27 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGAD v MINISTER FOR IMMIGRATION | [2005] FMCA 748 |
| 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 Migration Act 1958, s.477(1A) |
| Applicant: | SZGAD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 812 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: | Blake Dawson Waldron |
ORDERS
The notice of motion is upheld and the substantive application is dismissed.
The applicant not be permitted to institute any proceedings in this court seeking review of the decision handed down by the Refugee Review Tribunal on or about 19 March 2003 in RRT reference N01/38980 without the applicant first obtaining the leave of the court.
The applicant to pay the respondent's costs of the proceedings and of the notice of motion assessed in the sum of $1500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 812 of 2005
| SZGAD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceeding before me today is a notice of motion brought by the respondent Minister for the summary dismissal of this application. Although the grounds set out in the notice of motion are for dismissal pursuant to Rule 13.10 of the Federal Magistrates Court rules on the basis that:
(a) The proceeding is frivolous or vexations; or (b) the proceeding is otherwise an abuse of process.
The real complaint made by the Minister is that the proceedings are barred by virtue of the doctrine of res judicata or alternatively by the doctrine of issue estoppel or alternatively by the doctrine of Anshun estoppel. The Minister also argues that the proceedings are incompetent because the application was lodged outside the time limit permitted by section 477(1A) of the Migration Act.
The litigation history is contained in the affidavit of Mr Muthalib sworn on 9 May 2005. It reveals that the applicant filed an application on 17 April 2003 in this court seeking review of a decision of the Refugee Review Tribunal made on 19 March 2003. That application was heard before Federal Magistrate Driver on 12 February 2004. His Honour found that there was no jurisdictional error in the decision of the Tribunal and dismissed the application.
The applicant then appealed to the Federal Court where his appeal was heard by Emmett J on 6 May 2004. His Honour said at [7]:
“In the application to the Federal Magistrates Court dated 17 April 2003 the appellant asserted there were errors of law based upon procedural unfairness. However, no particulars were provided. The Magistrate recalls in his reasons that in the course of oral submissions the appellant claimed that the presiding member of the Tribunal had already made up his mind before the Tribunal hearing because he made his decision immediately after the hearing. The appellant also asserted before the Magistrate that he was concerned that the presiding member had only asked him questions about his personal circumstances and knowledge of the Freedom Party and not more generally about the risk he may face in Bangladesh. There is no substance in the matters that were put to the Magistrate and the Magistrate reached a demonstrably correct conclusion for the reasons that his Honour gave.”
The applicant then exercised his constitutional right to seek special leave to appeal from the High Court of Australia. On 2 June 2004 he filed an application. On 28 October 2004 he filed a draft notice of appeal. On 8 March 2005 his special leave application was heard and his Honour Hayne J said:
“There is no reason to doubt the correctness of the reasons given and the orders made by the Federal Court of Australia. An appeal to this court would enjoy no prospect of success.”
Undaunted by his rejection by the highest court in the land, the applicant then filed on 1 April 2005 this application. He based the application on what he described as the fallacy of syllogistic logic.
It is not clear whether he intended to continue to argue this case because on 24 May 2005 he lodged some written submissions. This interesting document was clearly brought into existence for the purposes of a case other than that of the present applicant because it deals with such matters as document fraud and arrest warrants that were never a feature of the evidence put before the Refugee Review Tribunal. The applicant told me that he obtained the document from a friend and that he did not really understand it.
It seems clear to me that this application suffers from the fatal defect that it is barred by virtue of the doctrine of res judicata because it seeks to re-agitate the very issues and the very decision that was rejected firstly by this court, then by the Federal Court and finally by the High Court of Australia. There is an additional problem. All three courts determined that the Tribunal did not reach its conclusions in jurisdictional error. In those circumstances, the application was one to which section 477(1A) of the Migration Act applied and the applicant has filed his application some years after the decision of the Tribunal and not 28 days. The application is incompetent for that reason.
The court must guard against abuse of its processes lest the actions of a few should be utilised to prejudice the human rights of the many by the introduction of restrictive legislation. I will, therefore, accede to the application by the Minister that my orders include a prohibition on the applicant filing further proceedings.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
0
2