SZGJW v Minister for Immigration - [2005] FMCA 1390

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGJW v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1390

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

Migration Act 1958 (Cth), ss.474, 477(1)(a), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

NARZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 499
NARZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1696
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581

Applicant:

SZGJW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1353 of 2005

Judgment of:

Smith FM

Hearing date:

6 September 2005

Delivered at:

Sydney

Delivered on:

6 September 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr Muthalib

Solicitors for the Respondents:

Blake Dawson Waldron

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 $3,500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 16 April 2003 reference N01/38604 or for review of the decision of the delegate of the first respondent dated 17 April 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

SYG 1353 of 2005

SZGJW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The substantive application in this matter is an application under s.483A of the Migration Act 1958 (Cth) seeking orders by way of judicial review of a decision of the Refugee Review Tribunal dated

19 March 2003 and handed down on 16 April 2003. The Tribunal affirmed a decision of the delegate refusing the applicant a protection visa.
At the first Court date the Minister’s solicitor foreshadowed a interlocutory application seeking the summary dismissal of the application under r.13.10, in particular as an abuse of the process of the Court. The matter then came before for directions on 4 July 2004 at which the applicant appeared, and I appointed today for the hearing of the motion. I am satisfied that the applicant was on proper notice of the purpose of today's listing, and he has today indicated to me that he understands the Minister's application.
The application is based on a history of litigation which must be familiar to the applicant. I shall trace it briefly, noting that more details of the applicant's claims to be a refugee and the reasons for the Tribunal in rejecting them can be found in the Tribunal's reasons and in the judgments to which I shall refer.
The applicant arrived in Australia in February 2001 after some years of residence in Malaysia. He applied for protection from Australia on

9 March 2001, making claims to fear to return to his country of nationality, Bangladesh. His claims were that he would be persecuted by reason of his adherence to the Ahmadi faith, this being a breakaway sect from Islam.
In its decision the Tribunal rejected the claims principally upon its assessment of the applicant's history and his poor knowledge of the faith to which he claimed to adhere. It also thought that, on his own account, he would receive adequate state protection as a member of the Ahmadi faith if he returned to Bangladesh.
The applicant applied to the Federal Court of Australia invoking the same jurisdiction as is now invoked in this Court, that is under s.39B of the Judiciary Act 1903 (Cth). His application contained a list of general grounds of review alleging jurisdictional error in the Tribunal's proceedings. The application was transferred to the Federal Magistrates Court by order made on 12 August 2003, and came on for hearing before Barnes FM on 2 August 2004.
In ex tempore reasons, her Honour explained why she dismissed the application (see NARZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 499). She dealt with all the matters raised by the applicant's application, and also considered the Tribunal's decision generally. Her final conclusion was:
No jurisdictional error is established on the grounds set out in the application or apparent on any other basis.
I take her Honour's conclusion to address the issue raised by s.474 as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, which is whether relief is barred because the Tribunal's decision was a "privative clause decision". As the High Court held in that case, it is such a decision unless jurisdictional error can be found to have affected it. I take her Honour's judgment to have decided that issue against the applicant.
The applicant appealed to the Federal Court of Australia using an unhelpful form of appeal familiar to that Court, including an allegation:
The grounds of relief is very similar with a recent High Court judgment - Muin v Refugee Review Tribunal.
Allsop J heard the appeal on 13 December and gave a judgment on

22 December 2004 (see NARZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1696). His Honour meticulously went through the grounds of review in the application before Barnes FM, the grounds of appeal in the documents filed by the applicant in his notice of appeal, and also some written submissions presented by the applicant. His Honour said of the submissions:
These matters do not disclose any jurisdictional error in the Tribunal or error on part of the Federal Magistrate. Various matters concerning the political affairs of Bangladesh on, before and after 1 October 2001, where dealt with. These submissions were no more than taking issue with the factual conclusions of the Tribunal. None of the submissions filed by the appellant supports any conclusion that the approach of the Federal Magistrate was in error.
His Honour then addressed the grounds of appeal, and concluded:
The claim for a protection visa was rejected by the Tribunal for factual reasons as identified in the reasons of the Federal Magistrate. The Federal Magistrate dealt with the complaints made about the Tribunal's reasons in a way which displays no error. The submissions of the appellant and the notice of appeal do not demonstrate in any error in either the Federal Magistrates reasons or the reasons of the Tribunal.
The applicant on 17 January 2005 filed an application for special leave to appeal to the High Court of Australia, again using forms showing no apparent attention to the judgments under appeal. The application was refused by their Honours, Hayne and Callinan JJ, under High Court rule 41.10.5. When announcing their reasons for refusing leave on

5 May 2005, their Honours said:
There is no reason to doubt the correctness of the decision of Allsop J. An appeal to this Court would enjoy no prospect of success. The application should be dismissed.
Within a month of that decision, the applicant had filed his present application in this Court. It is a document which patently has been taken from somebody else's case, since it asserts errors by the Tribunal concerning “his conversion to the Christianity”, an attack on findings concerning: “the applicant's mother death certificate”, and an attack on findings concerning relocation. However, those matters had formed no part of the reasoning of the present Tribunal. The application appears entirely devoid of merit, even if it were instituting proceedings without the prior history I have referred to above.
Moreover, in my opinion, the judgment of Barnes FM, upheld on appeal, gives rise to a res judicata in relation to further judicial review proceedings or an issue estoppel on the question as to whether the present decision of the Tribunal is a ‘privative clause decision’ for which relief is barred under s.474. That issue having been decided against the applicant, his present application is doomed to fail on the issues raised by a notice of objection to competency filed by the Minister. That notice invokes not only s.474(1), but also the time limit in s.477(1A) of the Migration Act on proceedings in relation to privative clause decisions.
I also note that the applicant today has not been able to identify any proper argument supporting further proceedings challenging the Tribunal's decision. He has not pointed to any argument which could not have reasonably been raised in the previous litigation, nor any special circumstance which would allow the Court to have permitted fresh grounds to be raised even if there were no absolute estoppel which would prevent this.
In the above circumstances, I am satisfied that the continuance of the present proceeding is an abuse of process, and that it is appropriate for the Court to summarily dismiss the substantive application. When doing so, I have taken into account the applicant's expressed desire that the Court should allow him to stay permanently in Australia, and his claim that he would face a lot of problems if he went back to Bangladesh. However, giving weight to need for finality to be brought to litigation, I consider that his objection to the Minister’s application should fail.
The history I have recounted above and the nature of the documents filed by the applicant, as well as his submissions made to me today, suggest that the applicant will continue to seek to engage the Minister in litigation concerning the administrative decision-making on his visa application unless further impediments are raised against him.

I therefore consider it appropriate to give a direction that, so far as this Court is concerned, no further application seeking to challenge the Tribunal's decision should be permitted to be filed without the prior leave of the Court.
In recent months it has also been apparent that the authors of documents which the applicant has used have attempted to circumvent such a direction by commencing applications directed at the delegate’s decision. Such applications are in my opinion prima facie an abuse of process in circumstances such as the present where an applicant has elected to pursue merits appeal to the Tribunal and then judicial review. I therefore think it appropriate to give the direction to the Registry in broad terms to encompass all previous administrative action in relation to the applicant's visa application. The Court's power to do this, in my opinion, is not found in its rule concerning litigants who are vexatious generally, but in its inherent powers to prevent abuse of its processes. This was the view taken by Jacobsen J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581 at [29].

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 28 September 2005