SZGJJ v Minister for Immigration - [2005] FMCA 1381

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGJJ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1381

MIGRATION – RRT decision – two previous judicial review applications pursued to the High Court – application dismissed as abuse of process.

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

Applicant S256/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1457
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NAAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 52
NAAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 582
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
S256 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 47
SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581

Applicant:

SZGJJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1338 of 2005

Judgment of:

Smith FM

Hearing date:

2 September 2005

Delivered at:

Sydney

Delivered on:

2 September 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the first respondent’s costs on an indemnity basis in the sum of $5,500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 20 August 2002 reference N00/33591 or for review of the decision of the delegate of the first respondent dated 15 May 2000 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 1338 of 2005

SZGJJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The substantive proceeding before me is an application invoking this Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) to give judicial review remedies under s.39B of the Judiciary Act 1903 (Cth). The applicant seeks orders which would set aside a decision of the Refugee Review Tribunal dated 26 July 2002 and handed down on 20 August 2002. The Tribunal affirmed the decision of a delegate of the Minister refusing to grant a protection visa to the applicant.
On the first Court date in the matter the applicant was served by the Minister with an interlocutory application and a notice of objection to competency. These seek the summary dismissal of the application under rule 13.10 of the Federal Magistrates Courts' rules, essentially on the basis that it is an abuse of process due to a previous history of litigation by the applicant in relation to the matter decided by the delegate and Tribunal.
The applicant claims to have arrived in Australia in April 2000 as a seaman who deserted his ship when it reached Adelaide. He claims to be a citizen of Bangladesh. In a visa application lodged on

16 September 2002 he claimed a history of involvement in politics in Bangladesh, giving rise to warrants for arrest against him, and convictions in his absence. It is unnecessary for me to recount his claims and how they were dealt with by the Tribunal, since this is detailed in the judgments to which I shall refer.
On 16 September 2002 the applicant sought review of the Tribunal's decision in the Federal Court of Australia, invoking the same jurisdiction under s.39B of the Judiciary Act. The application was transferred to this Court by order of Jacobsen J, and came on for hearing before Raphael FM on 20 February 2003. The applicant was unrepresented, and indeed has been unrepresented through the whole of the history which I shall be recounting.
Raphael FM gave a judgment explaining his reasons for dismissing the application (see NAAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 52). His Honour recounted the claims made to the Tribunal, and how it dealt with them. He rejected an argument by the applicant that the Tribunal was biased, and examined other arguments made by the applicant. He said:
What the applicant is really seeking here is a review of the merits.
His Honour concluded:
In all these circumstances I am unable to find that the Tribunal in this case has fallen into any error, such as to ground review under section 39B of the Judiciary Act 1903 (Cth).
The applicant appealed to the Federal Court, using a precedent notice of appeal which includes the assertion:
The grounds of relief is very much similar with a recent High Court judgment - Muin v Refugee Tribunal.
Hely J received the applicant's arguments in writing and orally at a hearing on 10 June 2003. In a judgment given on 16 June 2003 he dismissed the appeal (see NAAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 582). His Honour addressed further grounds raised by the applicant which challenging the Tribunal decision, including claims of actual bias, non-compliance with s.424A of the Migration Act, and the contention about Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. His Honour's conclusion was:
The findings of fact made by the RRT including its rejection of critical parts of the appellant’s claims, were open to it on the materials before it and are not susceptible to challenge. There was no jurisdictional error.
Nor has the appellant established any error on the part of the Federal Magistrate in dismissing the appellant's application. His decision was the only decision reasonably open to him on the materials before him.
His Honour's reference to "jurisdictional error" is plainly a reference to the effects of s.474 as interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, whereby a finding must be made that a Tribunal's decision is affected by jurisdictional error before any remedy can be given under s.39B. In my opinion, the effect of his finding was that the Tribunal’s decision was a “privative clause decision” within s.474(1).
The applicant filed an application for special leave to appeal to the High Court of Australia on 11 July 2003, and this was listed for hearing before Gummow and Kirby JJ on 18 June 2004. The applicant did not appear, but previously had made a request for an adjournment unsupported by proper evidence. Their Honours' refused the request and the special leave application. They said:
We would not be persuaded to adjourn the hearing because, in our view, the application has not prospect of success.
Notwithstanding these losses, the applicant started his second fresh proceedings. On 15 July 2004, he filed an application for an order nisi in the High Court of Australia in relation to the same decision which he had previously challenged. The grounds raised in the accompanying documents provided no particulars indicating an argument of any merit. Their author, as with most of the documents filed by the applicant during in his history of litigation, reveals a complete absence of any real effort to identify grounds of judicial review pertinent to the particular matter.
The application for order nisi was remitted by Hayden J to the Federal Court on 23 August 2004. It was listed for hearing before Moore J on 10 November 2004. At the hearing, the Minister applied for the proceeding to be dismissed on principals of res judicata and estoppel, and also alleged that the proceedings were an abuse of process. His Honour accepted those submissions (see Applicant S256/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1457). Moore J referred to the previous judgment of Hely J, and said:
Any additional issues which may be raised by the applicant in the present proceedings could have been raised in the earlier proceedings. In my opinion, this is plainly where the principals of Anshun estoppel should be given full effect. It is not apparent to me that there are any special circumstances which would suggest otherwise.
On 10 December 2004, the applicant applied for an extension of time to appeal from his Honour's judgment to a Full Court. The draft notice of appeal reveals the characteristics that I have referred to above.

It includes the ground, expressly rejected by Hely J:
The grounds and relief is very much similar with a recent High Court judgment - Muin v Refugee Review Tribunal.
Branson J on 1 February 2005 refused the application for extension of time (see S256 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 47). Her Honour described the draft notice of appeal as:
A collage of grounds of appeal taken from notices of appeal filed in other proceedings. It makes no reference to the only basis upon which Moore J dismissed the applicant's application for constitutional writs, namely that it was a plain case for the application of Anshun estoppel.
She said:
I am not satisfied that an appeal from the decision of Moore J, if instituted would have any reasonable prospect of success.
On 17 February 2005, the applicant applied for special leave to appeal to the High Court of Australia. One of his grounds was:
The Refugee Review Tribunal's decision was affected by the decisions in the High Court Muin v Refugee Review Tribunal.
His application was dealt with under the High Court rules, and on

27 April 2005, McHugh and Hayden JJ published their reasons for dismissing the application. Their Honours said:
There are no grounds for doubting the correctness of the judgment of the Federal Court.
An appeal would have no prospects of success. The application must be dismissed.
As I have indicated, within a month of his failure in his second excursion up to the High Court, the applicant had commenced this third proceeding to challenge the Tribunal’s decision on his visa application.
Plainly on the history and judgments which I have recounted above the proceeding must be doomed to failure and is an abuse of process.

In my opinion, the basis for this prediction and characterisation is that the applicant’s entitlement to relief under s.39B has become res judicata or that he faces an issue estoppel on whether the Tribunal's decision is a "privative clause decision” within s.474(1).
I have also reviewed the additional documents which the applicant has filed in this Court. These are of a similar character to those I have described above, and the applicant has been unable to identify any argument which could not reasonably have previously been raised in his original proceeding. Nor has he attempted to point to any special circumstance for allowing a fresh proceeding to be commenced.

If there were no strict estoppel, then Anshun estoppel would again doom his new application to failure.
The applicant's history shows a complete disregard of the need for finality in relation to judicial review of administrative decisions, and the applicant's statements to me today have indicated to me that he still does not appreciate the weight of this principle. His only argument was that he relied on the papers he had filed, and that he knew the Tribunal had made a mistake.
In all the above circumstances, I think it appropriate to dismiss the application under r.13.10(c.) I also consider that the Court should give a direction recognising that the applicant has, in relation to the administrative decision making concerning his protection visa, become a source of vexatious litigation for the Minister and Tribunal. I do not consider that a general order is appropriate under r.13.11, but the Court has power to direct its Registry not receive further judicial review applications in relation to the relevant decision making, and I propose to make a broad direction in the present case. The Court's power has been upheld by Jacobsen J in SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 at [29].
The same circumstances make it appropriate, in my opinion, to award costs on an indemnity basis.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 29 September 2005