SZGIE v Minister for Immigration - [2005] FMCA 1376

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGIE v MINISTER FOR IMMIGRATION

[2005] FMCA 1376

MIGRATION – RRT decision – previous judicial review applications taken to High Court – new application dismissed as an abuse of process.

Migration Act 1958 (Cth), ss.474(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Blair v Curran (1939) 62 CLR
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZAIZ v MIMIA [2005] HCATrans 262
SZAIZ v Minister for Immigration [2004] FMCA 22
SZAIZ v Minister for Immigration [2004] FCA 954
Wong v Minister for Immigration [2004] FCAFC 242

Applicant:

SZGIE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1268 of 2005

Judgment of:

Smith FM

Hearing date:

1 September 2005

Delivered at:

Sydney

Delivered on:

1 September 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms K Crawley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the respondent’s costs on an indemnity basis in the sum of $4,200.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 17 December 2002 reference N99/30588 or for review of the decision of the delegate of the respondent dated 22 October 1999 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1268 of 2005

SZGIE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application brought by the respondent seeking that the substantive application be dismissed under r.13.10(c) as an abuse of process of the Court. The substantive proceeding is an application under s.483A of the Migration Act 1958 (Cth) seeking judicial review relief under s.39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal handed down on 17 December 2002. The Tribunal's decision affirmed a decision of a delegate taken on 22 October 1999 refusing to grant a protection visa to the application.
The Minister contends that the continuance of the proceeding would be an abuse of the process of the Court due to a history of previous litigation conducted by the applicant in relation to the same Tribunal decision under the same judicial review jurisdiction and involving the same respondent.
The applicant's application for a protection visa was lodged on 6 August 1999, shortly after he arrived from Bangladesh. The Tribunal's decision is supported by a lengthy statement of reasons, reciting a long history of the proceedings before it, in which the applicant was represented by experienced immigration lawyers and enjoyed abundant opportunities to present evidence and submissions in writing and at a hearing. The Tribunal's reasons show a careful assessment of that evidence, and rejected various claims made by the applicant as the basis for his fears to return to Bangladesh. Further details of these matters can be found in the judgments to which I shall refer below.
On 10 April 2003, the applicant applied in this Court for orders under s.39B. His application and amended application showed no legal input, but they did include numerous grounds alleging jurisdictional errors, including on the basis of similarity to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. The matter came on for hearing before Raphael FM on 15 January 2004, where the applicant was represented by Mr Zipser of counsel. It would seem that Mr Zipser was given leave to file a further amended application formulating in a proper way numerous grounds of jurisdictional error which were argued to affect the Tribunal's decision.
Raphael FM reserved his decision, and on 23 January 2004 delivered reasons for dismissing the application (see SZAIZ v Minister for Immigration [2004] FMCA 22). It is unnecessary for me to recite afresh the various points argued by Mr Zipser and how they were dealt with by Raphael FM. His Honour's conclusion at [26] was:
I have been unable to find that the Tribunal fell into jurisdictional error in respect of any of the issues considered and argued so thoroughly by the applicant. I dismiss the application.
I understand from his Honour's reasoning and conclusion that his Honour understood that the applicant was obliged by s.474(1) of the Migration Act, as interpreted by the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, to establish that the Tribunal's decision was not a privative clause decision by reason of being affected by jurisdictional error. In my opinion, the necessary effect of his Honour's conclusion was that the Tribunal's decision has been found by his Honour to be a privative clause decision.
That same issue arises in this present proceeding and, in my opinion, his Honour's determination gives rise to a res judicata in relation to further applications under s.39B or to an issue estoppel on the issue of whether the Tribunal’s decision is a privative clause decision for which relief is barred (see Blair v Curran (1939) 62 CLR at 531 to 533).
The applicant had a right to appeal from Raphael FM's orders to the Federal Court, and he exercised that right. His appeal was determined on its merits by Hely J. The applicant was represented at a hearing on 16 July 2004 by Mr Zipser, and on 26 July 2004 his Honour gave a reserved judgment dismissing the appeal (see SZAIZ v Minister for Immigration [2004] FCA 954). His Honour addressed several grounds of appeal argued by Mr Zipser seeking to establish jurisdictional error by the Tribunal. It is clear from paragraph 26 of his Honour's judgment that his Honour reached the same conclusion as Raphael FM that the Tribunal did not make a jurisdictional error in its assessment of the appellant's claims.
The applicant then applied for special leave to appeal to the High Court of Australia on 18 August 2004. His application was refused by McHugh and Heydon JJ, who published reasons for refusing the application (see SZAIZ v MIMIA [2005] HCATrans 262). When publishing their reasons, their Honours said:
The applicant claims that the Tribunal fell into jurisdictional error by rejecting his claim, by concluding that Hindus in general did not suffer persecution in Bangladesh sufficient to found a Convention claim, and by finding that the applicant could relocate to another city within Bangladesh in order to escape any local problems he was experiencing.
In reaching these conclusions, the Tribunal relied on extensive documentary evidence. Hely J in the Federal Court held that these findings were open to the Tribunal. In reaching its conclusions, the Tribunal was entitled to accept or reject the evidence before it. The fact that it rejected certain evidence favourable to the applicant did not suggest that it had acted in bad faith. His Honour rejected the applicant’s claim that the Tribunal was unresponsive to the applicant’s submissions. The Tribunal’s conclusion that the incidents of violence prior to the elections in 2001 had now subsided was also open to it to make, and did not disclose any error of law.
The applicant’s submissions have been fully considered in the tribunal and courts below. None of those decisions manifest any error of law. Accordingly, an appeal would have no prospect of success, and the application must be dismissed.
As I have indicated, in my opinion, the previous judgment in the Federal Magistrates Court, upheld on appeal, provides an absolute answer to the present application brought in this Court, and it is doomed to failure on principles of res judicata or issue estoppel.
Moreover, even if the Court had a discretion to allow further grounds of judicial review to be raised in fresh proceedings it is clear, in my opinion, that principles of “Anshun” estoppel would render the application hopeless and also an abuse of process (see the discussion in Wong v Minister for Immigration [2004] FCAFC 242).
The applicant's present application in this Court and the documents he has filed in response to the Minister's interlocutory application have not identified any ground of review which, in my opinion, could not reasonably have been raised in the previous litigation. His documents and contentions copy precedents familiar to the Court, and which show no real attempt to address the particular decision-making that has occurred by the present Tribunal, including a long submission concerning Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. None of them could not have been raised in the previous proceedings.
The applicant today argued that he has a new point concerning the Tribunal's decision and assessment of his case in relation to his obtaining of a passport in Bangladesh. The contentions he sought to make appeared to me to go to the merits of the Tribunal's decision making, not its validity. In any event, I consider the applicant could reasonably have raised this point in his previous litigation if it had merit. I do not accept his contention that a point with merit was overlooked by his representative on the previous occasions.
The applicant has not been able to point to special circumstances which would justify the Court allowing him to reopen issues going to the validity of this Tribunal decision in fresh proceedings. I have taken into account the applicant's submission that he needs to stay in Australia and that he is afraid to go back to Bangladesh. However, in my view, the principles of abuse of process which support bringing finality to litigation should prevail in the present situation, and I consider it appropriate summarily to dismiss the present application under r.13.10(c).
I also consider, in the light of the documents that the applicant has filed in his present proceeding and his submissions to me today, that he does not appreciate the need for finality to be brought in relation to litigation concerning decision-making on his protection visa application. I consider in the circumstance it is appropriate to give a direction to the Registry to preclude the filing of further applications concerning decision-making on that application without prior leave of the Court. As has become apparent in recent weeks, it is necessary to frame such a direction broadly, since precedents are now circulating which seek to avoid the effect of a direction confined to a decision of the Tribunal. The Court's authority to make such directions has been upheld by Jacobsen J in (SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 at [29]).
The considerations which led me to characterise the present application as an abuse of process, in my opinion, also justify a costs order on an indemnity basis.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 29 September 2005