SZGIT v Minister for Immigration - [2005] FMCA 1951

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGIT v MINISTER FOR IMMIGRATION

[2005] FMCA 1951

MIGRATION – Delegate’s decision refusing protection visa – application for judicial review – previous merits and judicial review applications – application dismissed as abuse of process.

Acts Interpretation Act 1901 (Cth) s.8
Federal Magistrates Court Rule 13.10(c)
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.483A
Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119
SZARC v MIMIA [2005] HCATrans 264
SZARC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 931
SZARC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 238
SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821
SZGIT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1543
SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844

Applicant:

SZGIT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2926 of 2005

Delivered on:

23 December 2005

Delivered at:

Sydney

Hearing date:

23 December 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr Carter

Solicitors for the Respondent:

Sparke Helmore

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 $2,300.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 7 January 2003 reference N01/37455 or for review of the decision of the delegate of the first respondent dated 16 February 2001 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

SYG2926 of 2005

SZGIT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 12 October 2005 under s.483A of the Migration Act 1958 (Cth) and s.39B of the Judiciary Act 1903 (Cth). It seeks orders by way of judicial review in relation to a decision made by a delegate of the Minister on 16 February 2001, which refused to grant a protection visa to the applicant in response to an application lodged on 28 September 2000.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the proceedings can continue unaffected (see Sch.1 cl.41 of the amending Act, and the Acts Interpretation Act 1901 (Cth) s.8).
The application was given a first Court date before me on 16 November 2005. On that occasion the Minister foreshadowed an interlocutory application to summarily dismiss the principal application. I gave direction for the service of the documents on the applicant, and set the interlocutory application down for hearing today. I am satisfied that the applicant has had sufficient opportunity to understand the Minister's contentions and prepare a response. He has filed a written submission, to which I shall refer below.
The Minister's interlocutory application invokes the three paragraphs of rule 13.10 of the Federal Magistrate Court Rules, but I propose to address the matter under paragraph (c) and to consider whether the bringing of the application and its continuance would be an abuse of the process of the Court. I shall address the significance of a history of litigation engaged in by the applicant in relation to his protection visa application, and whether his present application is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119 at [61]).
The applicant's history is set out in an affidavit of Jennifer Batista sworn 11 November 2005 and the documents attached.
It is clear that he received actual notification of the delegate's decision, since he lodged an application for merit by the Refugee Review Tribunal within the mandatory time limit.
The applicant attended a hearing before the Tribunal, where he was questioned about his claim to fear persecution if he returned to Bangladesh due to his atheist religious opinions. The Tribunal handed down a decision affirming the delegate's decision on 7 January 2003. In its reasons, the Tribunal said:
Overall, I gained the impression that the applicant would say anything he considered might advance his claims with scant regard for the truth.
In relation to his significant claims, it concluded:
I am of the view that the applicant has fabricated these claims in an attempt to create for himself the profile of a refugee. Having rejected the applicant’s claims on the facts, I am not satisfied that he has a well-founded fear of persecution for a Convention reason.
On 2 March 2004 the applicant applied for judicial review of the Tribunal's decision in an application to this Court. It was determined by Barnes FM on 1 March 2004, and her Honour dismissed the application (see SZARC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 238). Her Honour said that the applicant relied on very general unparticularised grounds of review. However, her Honour addressed these and the Tribunal's decision generally, and found that no jurisdictional error was apparent.
The applicant then appealed to the Federal Court, where his appeal was considered by Madgwick J on 28 June 2004 and dismissed (see SZARC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 931). His Honour characterised the applicant's appeal vividly:
Not to put too fine a point on it, the applicant’s legal case was quite hopeless before the learned Federal Magistrate and is quite hopeless here. The applicant filed written submissions before the learned Federal Magistrate which appear to have had little relation to the case before her and that performance has been repeated spectacularly in this Court. The Notice of Appeal had little to do with her Honour’s judgment and, as far as I can see, the written submissions have nothing at all to do with it. They are an amazing example of what electronic cutting and pasting can do. The applicant says that a named friend volunteered the information for him. It is unnecessary to say any more than that the proceedings in this Court are quite without merit and no relief, as to the substance of the matter, even if regularly sought and if mere irregularities were excused, should be granted o the applicant.
Undaunted, the applicant sought special leave to appeal to the High Court of Australia.
His first application was deemed abandoned on 3 February 2005.
He then filed a second application for leave to appeal, which was refused by McHugh and Hayden JJ on 27 April 2005 (see SZARC v MIMIA [2005] HCATrans 264). When publishing the order, McHugh J said:
There is nothing in the draft notice of appeal or summary of argument to suggest that either the Tribunal or the Federal Court erred in their findings. As was the case in the Federal Court proceedings, it is difficult to see any correlation between the facts of this case and the applicant's written submission. An appeal in this matter would have no prospect of success.
The applicant then commenced another proceeding in this Court, again seeking orders by way of judicial review of the decision of the Tribunal.
On 16 September 2005, Nicholls FM dismissed the application, after upholding an objection to competency on the basis that the previous litigation had determined that the Tribunal's decision was a privative clause decision, so that the fresh application was outside the time limit under s 477(1A) (see SZGIT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1543). His Honour also formed the view that the proceeding was an abuse of process and directed:
That no further application by the applicant to review the decision of the Refugee Review Tribunal handed down on

7 January 2003 be accepted for filing except with leave of the Court.
It is now apparent that his Honour's direction was not framed broadly enough. The applicant has adopted a form of application which has circulated in recent times and has been used in an effort to circumvent such directions. It is framed, purely as an application for review of the primary decision of the delegate, and contends that that decision was invalid due to a formal defect in the notification letter.
I have, in many other proceedings, analysed the application and explained my opinions that its commencement is an abuse of process when filed in circumstances such as the present. I shall not repeat the opinions I gave in SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549, but shall apply then to the present case.
Wilcox J has recently upheld my judgment in that case (see SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844). In a similar matter he said:
The appeal would enjoy no prospect of success because it is obvious that the delegate's decision is now of no significance, having regard to the fact that the delegate's decision was reviewed by the Tribunal. There would be no possibility of any court, in the exercise of its discretion, intervening to set aside the delegate's decision. (see SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821 at [8])
The abusive nature of the current application is confirmed by the pplicant's written and oral submissions to me. His written submission repeats his refugee claims, and largely consists of criticism of the Tribunal's reasoning without seeking to support any element of the application.
In his oral submissions, the applicant said that he thought the Tribunal did not see his case properly, and that he therefore wanted the Court to send his case back to the Tribunal. He claimed not to understand that such an order was not sought in his application, although he said he had read the application.
It is plain to me that the applicant will continue to bring hopeless proceedings in the Court, unless it takes all steps possible to prevent that. In all the circumstances, it is appropriate to uphold the application for summary dismissal, and also to extend the direction given by Nicholls FM, so that no further application by the applicant should be received by the Court's registry in relation to any aspect of decision-making on his protection visa application.
I also consider that the circumstances I have indicated above justify an award of costs on an indemnity basis.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 10 January 2006