SZHBD v Minister for Immigration

[2006] FMCA 1148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1148

MIGRATION – Refugee – Tribunal functus officio – abuse of process of the Court – application dismissed.

Migration Act 1958, ss.66(1), 66(2)(d)(ii)
Federal Magistrate Court Rules 2001, Rules 44.12(1)(a)

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301
Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (2000) 74 ALJR 549
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1801
SZIIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 322
SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404

Applicant: SZHBD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 751 of 2006

Judgment of: Nicholls FM

Hearing date: 9 August 2006

Date of Last Submission: 3 May 2006

Delivered at: Sydney

Delivered on: 9 August 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. S. Hanstein

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant not be permitted to file any application seeking review of any decision or purported decision relating to his application for a protection visa, including but not limited to the decision of the delegate of the first respondent dated 7 October 1998 and the decisions of the second respondent dated 11 May 2000 and 27 February 2006, without leave of the Court..

3. The applicant pay the first respondent’s costs, on an indemnity basis, set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 751 of 2006

SZHBD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

1. I have before me an application filed in this Court on 14 March 2006 seeking an order that the respondent show cause why the remedies sought by the applicant (which essentially are based on seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 February 2006 to affirm the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant) should not be granted pursuant to Rule 44.12(1)(a) of the Federal Magistrate Court Rules 2001 (“the Rules”) as not raising an arguable case.

2. The respondent Minister in these proceedings has filed a Notice of Motion with a supporting affidavit and an outline of submissions, arguing that the proceedings be dismissed pursuant to Rule 13.10 of the Rules on the basis that the proceeding is vexatious and/or in the alternative an abuse of the process of the Court.

3. The applicant applied for a protection visa to the Minister’s Department on 24 August 1998, which was refused on 7 October 1998. The applicant sought review of the delegate’s decision on 2 November 1998 and the Tribunal, differently constituted, affirmed this decision on 11 May 2000. The applicant then unsuccessfully sought judicial review of the Tribunal’s decision and then lodged a further application for review of the same decision of the delegate on 28 November 2005. In this regard I note the affidavit of Sharon Elizabeth Hanstein, a solicitor in the employ of the respondent’s solicitors, sworn on 3 May 2006, which was read into evidence before me today. For the purposes of this Judgement I adopt paragraphs 3 to 17 of her affidavit, which outlines the relevant history in this matter:

   “3.On 5 June 2000 an application for an order of review was filed by the applicant in New South Wales District Registry of the Federal Court of Australia (“the Federal Court”). The application sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 May 2000. This decision affirmed a decision of the delegate of the respondent dated 7 October 1998 refusing the applicant’s application for a protection visa. Annexed hereto and marked “A” is a copy of the Tribunal’s decision. Annexed hereto and marked “B” is a copy of the application for an order of review.

   4.On 13 October 2000 O’Loughlin J dismissed the application with cost. Annexed hereto and marked “C” is a copy of his Honour’s reasons for judgment and orders.

   5.On 25 October 2000 the applicant filed a Notice of Appeal from the decision of O’Loughlin J. Annexed hereto and marked “D” is a copy of the Notice of Appeal.

   6.On 6 February 2001 the Full Court of the Federal Court constituted by Wilcox, Weinberg and Conti JJ dismissed the appeal with costs. Annexed hereto and marked “E” is a copy of the Full Court’s reasons for judgment and orders.

   7.Following the dismissal of his appeal, the applicant became a party to proceeding S89 of 1999 in the High Court of Australia commenced by Ms Lie as representative of a number of plaintiffs including the applicant.

   8.Pursuant to orders made by Gaudron J on 25 November 2002 in proceedings S89 of 1999, a draft order nisi and affidavit in support was filed on behalf of the applicant in the High Court of Australia on 29 May 2003 seeking prerogative writ relief in respect of the decision of the Tribunal. Pursuant to Gaudron J’s orders of 25 November 2003, the applicant was remitted instanter to the Federal Court of Australia in accordance with the usual terms of remitter pursuant to s.44 of the Judiciary Act 1903 (Cth). Annexed hereto and marked “F” is a copy of the draft order nisi and affidavit (without annexures) filed in the High Court of Australia.

   9.On 20 February 2004 Emmett J refused the application for an order nisi. Annexed hereto and marked “G” is a copy of his Honour’s reasons for judgment and orders.

   10.On 9 March 2004 an application under s.39B of the Judiciary Act 1903 (Cth) was filed by the applicant in this court seeking review of the same decision of the Tribunal dated 11 May 2000. Annexed hereto and marked “H” is a copy of the application.

   11.On 1 November 2004 Driver FM dismissed the application summarily. Annexed hereto and marked “I” is a copy of his Honour’s reasons for judgment and orders.

   12.On 5 November 2004 the applicant filed an application for leave to appeal from Driver FM’s decision. Annexed hereto and marked “J” is a copy of the application for leave to appeal.

   13.On 15 December 2004 Gyles J dismissed the application for leave to appeal with cost. Annexed hereto and marked “K” is a copy of his Honour’s reasons for judgment and orders.

   14.On 29 July 2005 the applicant filed an application for leave to appeal from Emmett J’s decision of 20 February 2004. Annexed hereto and marked “L” is a copy of the application for leave to appeal.

   15.On 8 August 2005 Graham J dismissed the application for leave to appeal with costs. Annexed hereto and marked “M” is a copy of his Honour’s reasons for judgment and orders.

   16.On 31 August 2005 the applicant filed a further application under s.39B of the Judiciary Act 1903 (Cth) in the court seeking review of the same decision of the Tribunal dated 11 May 2000. Annexed hereto and marked “N” is a copy of the application.

   17.On 15 November 2005 Smith FM dismissed the application as an abuse of process. Annexed hereto and marked “O” is a copy of his Honour’s reasons for judgement and orders.”

4. The Tribunal's decision record (in relation to the decision which is the subject of review before me now) is copied at CB 66 to CB 69. The Tribunal had earlier identified the critical question as being whether it had jurisdiction to review the decision made on 7 October 1998, on the basis of the validity of the application for review lodged on
   28 November 2005 (CB 24). It noted that it had formed a preliminary view that it did not have jurisdiction on the basis that the decision in question had already been reviewed and because the second application for review was received outside the prescribed time limit. It noted that it had written to the applicant on 19 December 2005 inviting his submissions on these issues, and that the applicant responded by letter dated 10 January 2006.

5. The Tribunal's “Findings and Reasons” for its decision are at CB 67.8 to CB 69.4. The Tribunal found that:

   1)It was satisfied that the Department’s decision notice dated
   7 October 1998 was sent to the correct address, in accordance with s.66(1) of the Migration Act 1958 (“the Act”), however the notice did not comply with s.66(2)(d)(ii) of the Act and it follows that the applicant’s application is taken to have been lodged within the time limits (CB 68.3 to CB 68.5).

   2)As it had already discharged its functions “under the Act” to review the delegate’s decision, it no longer had jurisdiction in relation to that decision (CB 68.9 to CB 69.1).

   In all the circumstances, the Tribunal found that it had already discharged its statutory function in review of the delegate’s decision and therefore no longer had jurisdiction.

6. In his application before me now the applicant puts forward the following grounds of review:

   “1.The RRT denied my natural justice and made jurisdictional error.

   2.The tribunal made a jurisdictional error by violating the duty it was under in satisfying itself as to eligibility of my protection visas.

   3.The tribunal did not provide me an opportunity to appear before the tribunal.”

7. At the hearing before me today the applicant appeared with the assistance of an interpreter in the Bengali language. Ms. Hanstein appeared for the respondent. The applicant stated that when he made an application to the Tribunal he was not given a date for a hearing. He stated that he believed the Tribunal “did not go through” his application and submissions “properly and did not make the proper decision”. Further, the applicant stated that he “told them of my problem and my family’s problem to RRT”, and that the Tribunal did not believe him and “did not listen” and “accept what I had to say”. The applicant also said that it is not possible for him to return Bangladesh.

8. The respondent submitted that the Tribunal was functus officio, in that there was no further function for it under the Act to conduct a second review (see Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 311). Therefore, the Tribunal correctly found that it lacked jurisdiction to review a validly reviewed delegate decision (see Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (2000) 74 ALJR 549, Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1801 and SZIIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 322). Therefore, the respondent argued that the applicant has no arguable case for the relief claimed and reasonable prospects of success.

9. Ms. Hanstein submitted that the present proceeding is an abuse of process and “doomed to fail”. The respondent argued that the applicant lodged a second review of the delegate’s decision because he was limited by orders made by Smith FM to seek further judicial review in respect of the first Tribunal’s decision. Further, the respondent submitted that it is apparent from the history of the applicant’s proceedings that the applicant’s actions are motivated by the collateral purpose of enabling him to extent his eligibility to a bridging visa.

10. I indicate for the applicant's benefit that there is a clear underlying public interest, that I ask the applicant to consider, and that is that, there be finality in litigation and that a party should not be repeatedly vexed in the same matter.  In this regard, the respondent has referred me to Justice Madgwick in the case of SZBJM vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 where Madgwick J said [29]-[30]:

    “Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way with legal advice to a Full Court of this Court and thereafter, it seems without such advice, to the High Court, it is high time that all this litigation was put to an end.”

11. In these circumstances, I dismiss the application on the basis that the applicant does not raise an arguable case, as sought by the respondent, as the proceedings are in my view an abuse of process. To succeed before the Court now the applicant would need to show that on the second occasion that before the Tribunal (that is, the occasion that led to the Tribunal decision of 27 February 2006), there was jurisdictional error in the Tribunal’s finding that it had no jurisdiction to hear the applicant’s case. 

12. On the material before me I refer to the unparticularised grounds in the applicant’s application to this Court. In light of the opportunity provided by the Tribunal to the applicant to appear before it, and in taking into account the applicant's affidavit of 14 March 2006, and the affidavit of Sharon Elizabeth Hanstein of 3 May 2006, which sets out the complete history of the applicant's attempts, both before the Tribunal and the Court, to seek to review the delegate's decision and to show error in the subsequent Tribunal's decision, I accept the respondent’s submission that they are mere assertions of error by the Tribunal, and in the circumstances cannot be made out. The affidavit shows clearly the protracted and extensive litigation that has surrounded this same Tribunal decisions. The affidavit reveals that the applicant has pursued review of the first Tribunal decision (made on
    11 May 2000) unsuccessfully before the Federal Court on a number of occasions, the Full Federal Court, in a class action before the High Court of Australia and the Federal Magistrates Court. On a third occasion before the Federal Court, the applicant’s application for leave to appeal the decision by this Court was dismissed with costs. The applicant then proceeded to file an unsuccessful application in the Federal Court on a fourth occasion before filing a further application in this Court seeking review of the same Tribunal decision which was dismissed as an abuse of process

13. I cannot see any error, let alone jurisdictional error, in the Tribunal's decision of 27 February 2006. The application for review was received by the Tribunal on that occasion on 28 November 2005, the Tribunal wrote to the applicant on 19 December 2005 and advised the applicant that on at least two bases it did not have jurisdiction to hear the application, and it gave the applicant an opportunity to comment on those matters. The applicant provided a statement to the Tribunal, dated 10 January 2006, which recited his complaints about the delegate's decision and about his refugee claims, and found that it did not have jurisdiction as it had already completed a review of the delegate's decision made on 7 October 1998. I can see no error in what the Tribunal has done, as on what was before it, it was clearly open to the Tribunal to come to that conclusion. 

14. Given what I have already said about the applicant's application to the Court now, which was not in any material way added to by the applicant before the Court today, it is plain that the application does not raise any arguable case for the relief that is sought and further is a clear abuse of the process of the Court. 

15. So on all the material before me I dismiss the application to the Court made on 14 March 2006 on the basis that no arguable case has been put before the Court to show jurisdictional error on the part of the Tribunal decision of 27 February 2006 and in all the circumstances this is an abuse of the process of the Court for the reasons that I have already said and it is appropriate in those circumstances therefore that the Court also make another order sought by the respondent which is order three on the respondent's notice of motion. 

16. The respondent also pressed that an order be made preventing the applicant from filing a further application for review of the Tribunal’s decision in this Court. In all the circumstances, particularly given the extensive litigation history, this is clearly appropriate, and accordingly I make the orders as sought by the respondent.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date: 09 August 2006