SZGRP v Minister for Immigration
[2005] FMCA 1339
•14 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRP & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 1339 |
| MIGRATION – Application for summary dismissal – application incompetent – application abuse of process. |
| Migration Act 1958 (Cth), ss.36(2); 474; 477(1A) Federal Magistrates Act 1999 (Cth), s.15 |
| Walton v Gardiner (1993) 177 CLR 378 |
| First Applicant: | SZGRP |
| Second Applicant: | SZGRQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1784 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 September 2005 |
| Date of Last Submission: | 14 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2005 |
REPRESENTATION
| The First Applicant appearing for himself |
| Solicitors for the Respondent: | Ms K. Crawley, Clayton Utz |
ORDERS
The application filed on 7 July 2005 is dismissed as being incompetent, and pursuant to s.477(1A) of the Act.
Order that the applicants be precluded from filing any application in respect of the Tribunal’s decision without leave of the Court.
Applicants to pay the costs of the respondent in respect of both the interlocutory application filed by the respondent on 2 August 2005 and the application filed by the applicants on 7 July 2005 in amount of $3300.
Such costs to be paid within 28 days unless otherwise agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1784 of 2005
| SZGRP |
First Applicant
| SZGRQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an interlocutory application by the respondent filed on 2 August 2005, in this Court, seeking that the applicants’ application filed 7 July 2005, in this Court, be dismissed, inter alia, as incompetent or an abuse of process.
The procedural history of the applicants’ applications before various courts is at the heart of the respondent’s interlocutory application. On
1 October 2002, the Refugee Review Tribunal (“the Tribunal”) affirmed a decision not to grant a protection visa to the applicants on the basis that they are not persons to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol. On 7 November 2002, the applicants filed an application for judicial review of the Tribunal’s decision in the Federal Court of Australia. On 10 June 2003, Allsop J of the Federal Court of Australia dismissed the applicants’ application for judicial review on the basis that the Tribunal had not committed any error. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth) (“the Act”) the Tribunal’s decision is a privative clause decision. On 11 September 2003, the applicants filed a notice of appeal from the judgment of Allsop J. On 16 December 2003, the Full Court of the Federal Court of Australia dismissed the notice of appeal upholding Allsop J’s reasons for judgment. On 12 January 2004, the applicants filed an application for special leave to appeal to the High Court of Australia. On
25 August 2004, the applicants’ application for special leave to appeal was deemed abandoned by the High Court of Australia. On
6 September 2004, the applicants, again, filed an application for special leave to the High Court of Australia to appeal from the decision of the Full Court of the Federal Court of Australia. On 16 June 2005, the applicants’ application for special leave to appeal to the High court of Australia was dismissed.
The respondent submits that this Court is bound by the decision of the Full Court of the Federal Court of Australia that the Tribunal’s decision, handed down on 1 October 2002, was a privative clause decision. Therefore, the applicants’ application in this Court, filed on
7 July 2005, is filed out of time and, pursuant to s.477(1A) of the Act is therefore incompetent.
In considering this submission, I have regard to the grounds of the applicants’ application filed in this court on 7 July 2005. The grounds contain no particulars and are as follows:
“1. The tribunal made his decision in bad faith.
2. The tribunal deprived me of natural justice.
3. The tribunal did not observe Migration Act 1958 properly. The tribunal was actual bias.
4. The tribunal’s decision did not reflect the material facts of my claim.
5. The tribunal has given a decision, which was preset in the back of it’s mind.
6. The tribunal mixed up many facts with this decision which affected the decision.
7. The tribunal concentrated in particular fact, while ignored many other facts in this condition.
8. The tribunal make up his mind without any injury regarding my claim and he did not believe my genuine convention based refugee claim.
9. My judicial review application before the Federal Magistrates Court is late. I refer to support my review application recent High Court case Plaintiff s157/2002 v Commonwealth of Australia.”
In their application filed in the Federal Court of Australia on
7 November 2002, the applicants relied on the following grounds:
“1. The Tribunal erred in law amounting to jurisdictional error in finding that the Applicant does not have any profile that place her on her return back to the country of habitual residence and does not meet the criterion set out in s36(2) of the Act for a protection visa.
2. Exceeded its jurisdiction in making its decision to affirm the first respondent’s decision.
3. Constructively failed to exercise its jurisdiction in arriving its decision.
4. The applicant (me) entitled for a protection visa which she applied.
5. The Applicant have a well founded fear of persecution in the country of her habitual residence ie. Bangladesh.
6. The Tribunal has acknowledged that the applicant (me) is of Bihari background but failed to amount of persecution the applicant (me) will be facing on my return back to Bangladesh”
In addition Allsop J dealt with claims raised by the applicants in their written submissions and identified as follows:
7. There was actual bias demonstrated by the Tribunal.
8. The High Court decision of Muin v RRT; Lie v RRT (2002) 190 ALR 601 and a denial of procedural fairness provided a basis for setting the decision of the Tribunal.
9. Reference to Plaintiff s157/2002 v Commonwealth of Australia.
10. The application of section 424A to the way the tribunal dealt with the perceived conflict of evidence between the two applicants concerning the hospitalisation of the applicant wife.
Allsop J, in considering the applicants’ claims, stated, at paragraph 15 of his judgment, that “the failure of the applicants’ claims rested fundamentally on the fact that the tribunal disbelieved both of them”. His honour concluded that he was unable to ascertain any ground of review which would lead him to conclude that the Tribunal had committed any error.
Ground 9 in the application before this Court is the same as ground 9 in the application before Allsop J. Grounds 6, 7 and 8 in the application before this Court are claims of merits review and are covered by grounds 1, 4, 5, 6 in the application before Allsop J. Grounds 1, 3 and 5 of the application before this Court are covered by grounds 1 and 7 in the application before Allsop J. Ground 2 in the application before this Court is covered in grounds 1, 2, 3 and 9 of the application before Allsop J.
Accordingly, there is no ground in the application before this Court that is not covered by the decision of Allsop J.
Before the Full Court of the Federal court of Australia the applicants relied on the following grounds:
1. “A number of errors were occurred by the Tribunal, which was not considered by the Honourable judge.
2. The Tribunal misunderstood the applicant’s claim and the decision of the Tribunal was not reflected the true picture of the claim. Honourable judge did not consider this.
3. The tribunal did not provide the applicant’s an opportunity to comment on information, which the tribunal relied on its decision. Where the applicant was deprived of receiving natural justice. Honourable judge also did not consider this.
4. S474 of the Migration Act is ineffective as per the recent two decisions of the High Court of Australia. Honourable trial judge also did not consider this in favour of the applicant.
5. The applicant will face persecution if he returns to his country of origin as there is a significant level of violation of human rights, this was not considered by honourable judge.”
Ground 1 was dismissed on the basis it did not identify the errors complained of and the Full court was unable to identify any error itself.
Ground 2 was dismissed on the basis that no particulars were provided of Allsop J’s failure to consider those matters and his reasons indicated that he had considered all of the matters before the Tribunal in arriving at his conclusions.
The Full Court considered that ground 3 was directed to the inconsistency the Tribunal identified between the evidence of each of the applicants before it. The Full Court upheld Allsop J’s finding that the applicants were not denied procedural fairness and natural justice because the Tribunal put the applicants squarely on notice of the Tribunal’s perception of the inconsistencies and accordingly, this ground was dismissed.
Ground 4 was dismissed on the basis it was misconceived and therefore must fail.
Ground 5 was dismissed on the basis that it was a complaint that Allsop J did not address the merits of the applicants’ application. Plainly the merits were a matter solely for the Tribunal.
There is no ground in the application filed in this Court that discloses an issue not considered and determined by the Full Court of the Federal Court in upholding the application for judicial review before Allsop J or that was otherwise not considered and determined by Allsop J.
Accordingly, this Court is bound by the consequent result of the decision of the Full Court that, because no error exists in Allsop J’s review of the Tribunal decision, pursuant to s.474, the Tribunal’s decision is a privative clause decision.
Accordingly, this Court has no jurisdiction to entertain the applicants’ application filed on 7 July 2005 and the application is therefore dismissed.
In the event this Court is found to have jurisdiction, then having regard to the grounds of the application filed in this Court on 7 July 2005 and the grounds before Allsop J and the Full Court, I am satisfied that the application before this Court is an attempt to re-litigate the same subject matter that has been considered and determined by Allsop J and the Full Court. The proceeding before this Court is, therefore, an abuse of process on the basis that its continuance would be “unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new case which has already been disposed of by earlier proceedings” (Walton v Gardiner (1993) 177 CLR 378 at 393) and should be dismissed.
The respondent also submitted that res judicata and, alternatively, Anshun estoppel prevent the Applicant from continuing his proceeding before this Court. However, in light of the reasons above it is unnecessary to deal with those grounds.
The respondent further seeks an order that the applicants not institute any further proceedings without leave of the Court. Pursuant to s.15 of the Federal Magistrates Act1999 (Cth), this Court has power to make orders of such kind as the Federal Magistrates Court thinks appropriate. Given the number of attempts of the applicants to attack the correctness of the Tribunal’s decision and the hopelessness of each of the applicants’ applications, despite authoritative decisions, I am of the view that it is appropriate that an order be made precluding the applicants from filing any further applications for review of the Tribunal’s decision without leave of the Court.
The applicants should pay the respondent’s costs of both the interlocutory application and the application filed on 7 July 2005.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 14 September 2004
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