SZGPU v Minister for Immigration
[2005] FMCA 1388
•2 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGPU v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1388 |
| MIGRATION – RRT decision – previous unsuccessful judicial review applications – application dismissed as abuse of process. |
| Migration Act 1958 (Cth), ss.477(1)(a), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Blair v Curran (1939) 62 CLR 464 NAKL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 498 NAKL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 147 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZGPU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1690 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 2 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 2 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance by or for applicant |
| Counsel for the First Respondent: | Mr A J Crockett |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 first respondent’s costs in the sum of $3,000.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 12 February 2003 reference N01/37107 or for review of the decision of the delegate of the first respondent dated 17 January 2001 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
These orders shall not take effect until 30 September 2005.
The first respondent must serve a copy of these orders on the applicant by post to his address for service within 2 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1690 of 2005
| SZGPU |
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 was filed on 29 June 2005.
It seeks orders by way of judicial review under s.39B of the Judiciary Act 1903 (Cth) pursuant to the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth), in relation to a decision of the Refugee Review Tribunal dated 20 January 2003 and handed down on
12 February 2003. The Tribunal affirmed a decision made by a delegate of the Minister on 17 January 2001 refusing to grant a protection visa to the applicant.
The applicant was served shortly after the first Court date with a notice of motion by the Minister seeking that the application be dismissed as an abuse of process by reason of earlier litigation conducted by the applicant against the Minister in relation to the same decision of the Tribunal.
The applicant was also served with a notice of objection to competency raising the provisions of s.477(1A) of the Migration Act. This imposes a time limit which would render the present application incompetent if the Tribunal decision to which it relates is a “privative clause decision”. The Minister contends that the question of whether the Tribunal's decision is a privative clause decision was determined against the applicant by a final judgment in the course of the previous litigation.
The Minister's notice of motion was made returnable before me on
8 August 2005 and the applicant attended on that occasion. I set the motion down for hearing today, and am satisfied that the applicant was aware of the nature of the proceeding and that it would be heard today. The applicant has not attended Court today, and has made no application for adjournment nor made any contact with the Court or the first respondent's solicitors to explain his absence.
In view of the nature of the relief sought by the Minister I consider it appropriate for me to proceed under r.13.03A(d) to determine the Minister's notice of motion in the absence of the applicant. I shall, however, frame my orders so they do not come into effect until a sufficient period for the applicant to be able to move the Court to set aside the orders under r.16.05(2)(a). If he seeks to move under that rule he will need to explain his absence today and explain why he has grounds of opposition to the Minister's motion with a prospect of success.
The applicant's application for protection visa was lodged on
4 October 2000 shortly after he arrived from the country of his nationality, Bangladesh. The nature of his claims and how they were dealt with by the Tribunal is sufficiently described in the judgments referred to below. I note that the conclusion of the Tribunal was firmly on the basis that it did not find the applicant "to be a true or a credible witness". The Tribunal formed the opinion that the applicant's claims that he feared persecution as a member of the Jatiya party and the claimed activities and events arising from that involvement were "concocted".
The applicant applied for judicial review of the Tribunal's decision by way of an application under s.39B to the Federal Court seeking relief of the same kind as is sought in the present application. The proceeding was transferred to the Federal Magistrate's Court by order of Moore J on 1 April 2003.
It came on for hearing before Raphael FM on 28 October 2003. The applicant's grounds in his application were framed broadly without any particularity allowing them to be applied to the particular decision of the Tribunal. The applicant also filed an outline of submissions which alleged various errors in the Tribunal's decision. Raphael FM addressed these when giving his judgment (see NAKL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 498). His conclusion was:
11. …It is quite clear the applicant is under the misapprehension that review by this Court is simply a rehearing of the matters that were before the Tribunal. This is not the case. This Court's jurisdiction is strictly limited and I am unable to overturn the decision of the Tribunal, merely because I take a different view of the facts to that which it took.
12. Because the applicant was unrepresented before me I carefully read through the Tribunal's decision. It seems to me that this document indicates that all matters raised by the applicant were considered and that the applicant was given a very fair chance of responding to the concerns which the Tribunal had about the truth of what it was being told. There is no suggestion made, and I cannot find any cause for one, that the Tribunal failed to provide the applicant with procedural fairness.
13. In all the circumstances I am unable to review this decision.
I dismiss the application. …
The applicant then sought to appeal to the Federal Court of Australia by filing an application for extension of time on 24 November 2003. In support he filed a lengthy submission.
On 20 February 2004, Hely J dismissed the application (see NAKL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 147). It is apparent that his Honour gave the applicant every opportunity to identify fresh grounds for challenging the Tribunal's decision, and that his Honour carefully dealt with all the matters raised by the applicant in his written submission. They appear to have been taken from template documents with little reference to the Tribunal’s decision in the present case. His Honour's conclusion was:
In my opinion an extension of time should be refused because, having regard to the grounds of appeal upon which the applicant has said that he wishes to rely, the grant of an extension would be futile.
The applicant applied for special leave to appeal to the High Court on about 1 March 2004, using a familiar precedent which includes the allegation:
The Refugee Review Tribunal's decision was affected by the decisions in the High Court Muin v Refugee Review Tribunal.
It appears that the applicant failed to comply with the High Court Rules concerning filing of additional documents, and his application was deemed to have been abandoned for non compliance on 8 September 2004.
However, the applicant filed a second application identical to his first on 7 September 2004. It was dealt with by the High Court in chambers, and on 16 June 2005 Gleeson and Gummow JJ announced their reasons for dismissing the application. They said:
The applicant sought judicial review of the Tribunal's decision in the Federal Court. The application was remitted to the Federal Magistrates Court. That Court dismissed the application because no jurisdiction error in the decision of the Tribunal had been shown. An application for extension of time in which to appeal to the Federal Court was dismissed by Hely J. His Honour held that, having regard to the proposed grounds of appeal, any appeal would be futile. The applicant seeks special leave to appeal from that decision.
There are no prospects of success in any appeal to this Court against the decision of Hely J. We have considered the decision of the Federal Magistrates Court against which the appellant sought to appeal to the Federal Magistrates Court but no error is apparent in that decision. Special leave to appeal is refused.
It is clear that their Honours considered that Raphael FM had made a finding that no jurisdiction error affected the Tribunal decision.
I respectfully agree with their Honours' opinion. The consequence is that Raphael FM’s decision effectively determined the issue of whether the Tribunal's decision was a “privative clause decision” as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. As I have indicated, this issue has now been raised in the present proceeding by the Minister’s notice of objection to competency. In my opinion, the present application is therefore doomed to failure on principles of both res judicata or issue estoppel due to the previous determination on this issue (see Blair v Curran (1939) 62 CLR 464 at 531 to 533).
Moreover, examining the two documents which the applicant has filed in this Court in opposition to the Minister's motion, and considering the grounds set out in his application, it is apparent to me that he can identify a new argument which he could not reasonably have raised in his previous litigation. Nor has he identified any special circumstance justifying the Court allowing new proceedings for judicial review to be pursued. Indeed the documents filed in the present application have come from sources which have, in the Court's experience, provided the applicant and many other applicants with template documents which make no attempt to relate a particular decision of the Tribunal in any meaningful way. It appears clear to me that this applicant has no comprehension of the principles, to which his attention has been drawn by a written submission served on him by the Minister, requiring finality to be given to litigation.
In those circumstances the proceeding should not only be dismissed as an abuse of process, but I consider that the Minister has made out good grounds for a direction which will preclude the applicant filing further applications in this Court seeking to challenge the administrative decisions made on his protection visa application without the prior leave of the Court.
As I said at the start of this judgment, my opinions in this respect have been formed provisionally on the material filed by all parties but without the benefit of oral submissions from the applicant. The Court remains able to hear those submissions if the applicant chooses to bring an application under r.16.05.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 29 September 2005