SZGJF v Minister for Immigration
[2005] FMCA 1171
•8 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGJF v MINISTER FOR IMMIGRATION | [2005] FMCA 1171 |
| MIGRATION – RRT decision – two previous applications for judicial review pursued to the High Court – new application dismissed as abuse of process. |
Federal Court Rules, O.80
Federal Magistrates Court Rules 2001, r.13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, 486A
Applicant S430 of 2003 v MIMIA [2005] HCATrans 293
Applicant S430 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1743
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 381
NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 569
S430 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1341
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 212 ALR 581
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
| Applicant: | SZGJF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1328 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 8 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms J Bautista |
| 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 $3000.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 4 December 2001 reference N98/20914 shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1328 of 2005
| SZGJF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The substantive matter in this case is an application in the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks relief under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) by way of writs of certiorari, mandamus and prohibition, or other orders which would set aside a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 November 2001 and handed down on 4 December 2001. The Tribunal affirmed the decision of a delegate refusing to grant a protection visa to the applicant.
There is no need for me to set out the facts of the applicant’s claims, nor how they were dealt with by the Tribunal, since these are described by Sackville J in NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 569. In his Honour’s reserved judgment delivered on 7 May 2002, his Honour addressed the merits of the applicant’s entitlements under s.39B of the Judiciary Act in relation to the present Tribunal decision, putting to one side the possible further difficulties faced by the applicant by reason of s.474(1) of the Migration Act which applied to those proceedings in the same form as applies to the present proceedings.
The grounds of review that were before Sackville J were broad ranging and obscure. His Honour also had written submissions, and the applicant appeared in person to present arguments. His Honour also indicated that he had a written submission prepared by a barrister to whom the applicant had been referred for legal advice pursuant to Order 80 of the Federal Court Rules. His Honour identified the principal ground which could be put forward on behalf of the applicant as a procedural fairness contention concerning the Tribunal’s reliance on country information when deciding that the applicant could return to Bangladesh without fear due to political changes in the country since his departure. His Honour said at [18]:
“… assuming the RRT was obliged to accord procedural fairness to the applicant, it did not breach that duty in the circumstances of the present case.”
His Honour said at [10] in relation to the applicant’s written submissions:
“The written submissions by the applicant himself are clearly presented. They concentrate, however on factual issues, arguing that the RRT failed to give sufficient weight to evidence of political persecution in Bangladesh, especially violence directed at Freedom Party activists. None of these factual contentions provides a basis for imputing error to the RRT such as would warrant the grant of relief pursuant to the jurisdiction conferred by s 39B(1) of the Judiciary Act. Nothing else said in those written submissions carries the applicant’s case in this Court any further.”
The applicant appealed from his Honour’s orders to a Full Court, which on 26 November 2002 gave written reasons for dismissing the appeal on its merits (see NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 381). Their Honours noted that Sackville J had:
… first considered the substance of the s 39B application. His conclusion in that matter made it unnecessary to decide whether s 474(1) would, in the circumstances, have precluded any ground of relief under s 39B of the Judiciary Act 1903 for an alleged denial of procedural fairness.
Their Honours then proceeded also to address the merits of the procedural fairness argument independently of the effect of s.474(1) and the then current interpretation of that section, and were not satisfied that His Honour’s reasoning “betrays any appellable error”.
The applicant sought special leave to appeal to the High Court of Australia but failed to comply with the requirements of its rules. His appeal was deemed to have been abandoned and a certificate to this effect issued on 11 July 2003.
The applicant then commenced a second judicial review proceeding by filing an application for an order nisi in the High Court itself. This alleged a failure to follow proper procedure and breach of the rules of natural justice, as well as raising what was said to be a constitutional point as to the validity of s.486A which imposed a time limit on applications to the High Court in its Constitutional jurisdiction. The application claimed relief in relation to the delegate’s decision, as well as the Tribunal’s decision on review.
Heydon J remitted the matter to the Federal Court on 16 February 2004, and it came on for hearing before Hill J on 13 October 2004. His Honour appears to have given oral reasons which have not been transcribed, addressing the substantive merits of the matter other than the constitutional point, and finding that no jurisdictional error had been established. In a further ex tempore judgment, which was published as S430 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1341, Hill J addressed the constitutional point and said that the validity of s.486A had been settled by Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476. He said:
Insofar as there was a jurisdictional error, the provisions of s 486A would not apply as the decision would not be a privative clause decision. On the other hand if there were no jurisdictional error then an applicant for relief under s 39B of the Judiciary Act 1903 (Cth) would necessarily fail. I would accordingly dismiss the application.
His Honour said, in relation to the challenge to the delegate’s decision:
The present application for an order nisi purports to be directed at the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) as well as the decision of the Refugee Review Tribunal (“the Tribunal). To the extent that the proceedings seek to have set aside the delegate’s decision they are arguably misconceived in that the Tribunal in making its decision on a review was acting itself in the place of the Minister to the extent that the application purported to be an application for review of the Minister’s decision. It raised the identical issues to those which had already been litigated. The applicant did not suggest that there was any matter he wished to litigate now that was in any way different from his previous application.
His Honour also referred to the previous history of litigation of the applicant and took this into account on the issue of costs. His Honour accepted a submission, in effect, that the application for an order nisi was an abuse of process of the Court and awarded indemnity costs against the applicant.
An application for an extension of time to appeal from his Honour’s decision was rejected by Tamberlin J on 16 December 2004 (see Applicant S430 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1743).
An application for special leave to appeal to the High Court was refused by Hayne and Callinan JJ on 27 April 2005. In Applicant S430 of 2003 v MIMIA [2005] HCATrans 293, Hayne J said:
The Federal Court was not persuaded that any grounds could be made out to demonstrate any appealable error of law or principle in the reasoning of the primary judge. Neither in that respect nor in any other has the Federal Court shown to have been in error.
Notwithstanding these losses, the applicant commenced the present proceeding on 23 May 2005, filing a form of application which follows a common precedent in this Court containing an unparticularised litany of heads of judicial review. It seeks relief under s.39B of the Judiciary Act in relation to the same decision of the Tribunal as was the subject of all the previous proceedings.
At the hearing before me today, the applicant told me that there was no significant difference in the arguments he wished to make to this Court and those that he had previously made to other Judges. He then proceeded to sketch to me his proposed argument that the Tribunal’s decision was wrong on its merits in relation to its assessment of the political situation in Bangladesh. A “written case” filed in the Court pursued the same theme and attached recent internet reports concerning the situation in Bangladesh. It is clear that the applicant is totally unpersuaded by the Tribunal’s decision on its merits, and will seek to air his disagreements in endless litigation.
The Minister has brought the notice of motion listed for hearing before me today, seeking summary dismissal of the proceeding under Rule 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of the process of the Court. It is plainly so, in my opinion. It is plainly doomed to failure on the basis of estoppels arising from the previous proceedings. I think probably there is a res judicata in relation to the availability of relief under s.39B of the Judiciary Act arising from Sackville J’s decision as upheld on appeal, and arising from the application for Constitutional writs which was dismissed by Hill J.
Even if there were not, the applicant’s application would fail if it were allowed to come to a final hearing on principles of Anshun estoppel. The applicant has not presented any argument or material to me suggesting any reasonable basis for him not to have presented his present arguments in the earlier litigation. Indeed, as I have indicated, it appears to me he just wants to present the same arguments again. Nor has he indicated anything which might amount to special circumstances to allow him to litigate different grounds which should have been raised in the earlier proceedings. In those circumstances, continuance of the proceedings would be met by a defence of Anshun estoppel, and their continuance in the face of such a defence would be an abuse of process (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).
In all the above circumstances, I consider it appropriate for me to dismiss the application under Rule 13.10(c), and also to make an order as sought in the respondent’s notice of motion that the Registry not accept any further application for review of this Tribunal’s decision except with prior leave of the Court. The power to make such an order was upheld by Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 212 ALR 581 at [29].
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $3000.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 25 August 2005
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