SZGNT v Minister for Immigration
[2005] FMCA 1518
•6 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGNT v MINISTER FOR IMMIGRATION | [2005] FMCA 1518 |
| MIGRATION – Review of Refugee Review Tribunal decision – interlocutory application for dismissal – interlocutory application upheld – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), s.91X
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), Part 13 Rule 13.10(b), 13.10(c)
High Court Rules, Order 69A, Rule 6(1), Rule 10(9)
SZDNU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1633
| Applicant: | SZGNT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1562 of 2005 |
| Delivered on: | 6 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 6 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms S Burnett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The respondent’s notice of motion filed on 29 June 2005 is upheld.
The application is dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) as an abuse of the process of the Court.
No further application by the applicant to review the decision of the Refugee Review Tribunal made on 11 December 2001 is to be accepted for filing, except by leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1562 of 2005
| SZGNT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 29 June 2005 the respondent moved the Court for orders that the proceedings be dismissed pursuant to Part 13, Rule 13.10(b) and/or Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the grounds that the proceedings were vexatious and/or an abuse of process, or in the alternative, an order that the applicant be barred by res judicata and/or is estopped from bringing further proceedings.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZGNT”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 16 June 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 December 2001 and handed down on 9 January 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on
5 May 1999 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
Litigation history
Ms S Burnett, Solicitor for the respondent, prepared a convenient summary of the litigation history in respect of this matter which I have adopted and reproduced as follows:
a)On 1 February 2002 the applicant commenced proceedings in the Federal Court (Reference N71 of 2002) in which he sought review of the Tribunal’s decision made on 11 December 2001. Those proceedings were dismissed by his Honour Justice Hely on 11 April 2002.
b)
On 30 April 2002 the applicant appealed to the Full Federal Court against the decision of Hely J (Reference N368 of 2002). On
6 November 2002 their Honours Justices Emmett, Madgwick and Conti dismissed the appeal.
c)On 2 December 2002 the applicant filed an application for special leave to appeal in the High Court (Reference N441 of 2002).
d)On 21 July 2003 Registrar Grey of the High Court certified that the applicant had failed to comply with the provisions of Order 69A Rule 10(9) of the High Court Rules and deemed the application for special leave to appeal to have been abandoned.
e)On 31 July 2003 the applicant filed an application for special leave to appeal in the High Court (Reference S440 of 2003).
f)On 3 February 2004 Registrar Grey of the High Court certified that the applicant had failed to comply with the provisions of Order 69A Rule 6(1) of the High Court Rules and deemed the application for special leave to appeal to have been abandoned.
g)On 2 March 2004 the applicant filed an ex parte application for special leave to commence proceedings in the High Court (Reference S61 of 2004) and on 31 March 2004 his Honour Justice Heydon dismissed that application.
h)On 11 May 2004 the applicant commenced proceedings in the Federal Magistrates Court (Reference SZ1383 of 2004) in which he sought review of the Tribunal’s decision.
i)On 27 September 2004 his Honour Federal Magistrate Smith dismissed the application pursuant to Part 13 Rule 13.10(c) of the Rules.
j)On 27 October 2004 the applicant commenced proceedings in the Federal Court (Reference NSD1557 of 2004) in which he sought an extension of time to file and serve a notice of appeal.
k)On 8 December 2004 his Honour Justice Lindgren dismissed the applicant’s application for extension of time to file and serve a notice of appeal.
Submissions
For the purpose of this interlocutory application, the respondent tendered and applied for the affidavit of Sharon Anne Burnett sworn on 29 June 2005 to be admitted into evidence. Ms Burnett also filed an outline of submissions which contained a convenient litigation history of the matter together with a summary of the grounds of review raised by the applicant in previous proceedings and submissions on res judicata, Anshun estoppel and abuse of process.
The applicant filed a document entitled “Applicant’s Submission for Competency” which appeared to have been prepared for the applicant by someone with limited knowledge of the migration law jurisdiction. The document was generic in nature and did not specifically refer to the applicant’s matter and contained a number of bracketed references to potential litigants and not to this Court. Attached to the document was a number of extracts from recent High Court decisions, again not directly relevant to the proceedings currently before the Court.
Reasons
The applicant appeared at the hearing unrepresented and aided by a Bengali interpreter. He had failed to bring any of his documentation or submissions to Court and when asked if he wished to make oral submissions in response to the respondent’s application, the applicant stated his concerns about his safety upon his return to Bangladesh and the actions of people in that country. The applicant raised only factual matters and at the heart of his submissions was the desire to have a rehearsal of the merits of the Tribunal’s decision. I informed the applicant of the role of this Court and invited him to identify any issue in respect of the Tribunal’s decision that he had not previously raised in any of the Court proceedings. He conceded there were no further issues he wished to raise other than that he disagreed with the Tribunal hearing and that all of the subsequent Court hearings had agreed with the Tribunal.
In the circumstances, there does not appear to be any purpose for a further consideration of the same grounds of review of the decision of the Tribunal made on 11 December 2001. In respect of the current application before this Court, I refer to the decision of Lindgren J in SZDNU v Minister for Immigration & Multicultural & Indigenous Affairs at [21] where his Honour held:
“The applicant has no prospects of success for all the reasons that Hely J, the Full Court and now Smith FM have given. An appeal, in addition to being a hopeless attempt to achieve a further review on the merits, would be an abuse of process defeated by the principles known as res judicata and issue estoppel and the principles referred to in port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589: cf Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 at [38] et seq; and on appeal at [2004] FCAFC 242 at [36]-[39].”
On the applicant’s own admission, he had no new ground or material to support the new application for review of the Tribunal’s decision.
He stated that he disagreed with the Tribunal’s decision and he sought a merits review in respect of that decision which is a request that this Court does not have the jurisdiction to entertain.
Conclusion
The respondent’s interlocutory application should be upheld and the applicant’s application filed on 16 June 2005 should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 7 September 2005
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