SZHBD v Minister for Immigration - [2005] FMCA 1742

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBD v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1742

MIGRATION – RRT decision – with previous judicial proceedings – application dismissed as abuse of process.

Migration Act 1958 (Cth), s.476, 477(1A), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

(the applicant) v Minister for Immigration and Multicultural Affairs [2001] FCA 46
(the applicant) v Minister for Immigration and Multicultural Affairs [2000] FCA 1883
Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
Applicant S1279 of 2003 v Minister for Immigration [2004] FCA 176
Applicant S1279/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 748
S1279/2003 v Minister for Immigration [2005] FCA 1088
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

Applicant:

SZHBD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2438 of 2005

Judgment of:

Smith FM

Hearing date:

15 November 2005

Delivered at:

Sydney

Delivered on:

15 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K Alexander

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 on an indemnity basis in the sum of $2,800.
Direct that no further application for review of the decision of the Refugee Review Tribunal dated 11 May 2000 reference N98/25401 or for review of the decision of the delegate of the first respondent dated 7 October 1998 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 2438 of 2005

SZHBD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this matter is an application under s.483A of the Migration Act 1958 (Cth), and s.39B of the Judiciary Act 1903 (Cth). It seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal made on 11 May 2000.
The application was returnable before me at a first Court date on 4 October 2005, having been filed on 31 August 2005. I gave directions on that occasion for the hearing of an interlocutory application by the Minister for the dismissal of the application as an abuse of the Court's processes. The hearing of the interlocutory application was adjourned once due to the unavailability of an interpreter, but the applicant has been assisted by an interpreter today. I am satisfied that he has had sufficient notice of the Minister's application.
The Minister's application relies on a long history of litigation by the applicant in relation to the same Tribunal decision, in which this is the fourth first instance juridical review proceeding commenced by the applicant. His history is as follows.
The applicant arrived in Australia in August 1998, having left his country of nationality, Bangladesh, to work in Malaysia in 1993. His claim for a protection visa was lodged on 7 October 1998. He claimed that if he returned to Bangladesh he would be targeted for serious mistreatment, including violence and false criminal charges due to his involvement in politics for the Bangladesh Nationalist Party, (BNP). He claimed that he would be targeted by the Awami League and its supporters.
The Tribunal addressed his claims and doubted whether the applicant had ever joined the BNP. Nor did the Tribunal accept that the applicant's family had faced years of persecution as claimed by the applicant. The Tribunal referred to part of the applicant's evidence as “ludicrous, outlandish, unreliable and totally incredible”. It also concluded that due to the applicant's absence from Bangladesh, he would not face a real chance of persecution if he returned to Bangladesh.
On 5 June 2000, the applicant filed an application in the Federal Court of Australia for review under that Court's previous jurisdiction in s.476 of the Migration Act. His case was decided by O'Loughlin J on

13 October 2000 and his Honour dismissed the application (see (the applicant) v Minister for Immigration and Multicultural Affairs [2000] FCA 1883). It is clear from his Honour's reasons that he addressed the Tribunal's decision broadly. He rejected various arguments made by the applicant claiming legal error by the Tribunal, and also that the Tribunal was biased.
The applicant appealed to the Full Court, which dismissed his appeal on 6 February 2001 (see (the applicant) v Minister for Immigration and Multicultural Affairs [2001] FCA 46). The Full Court was constituted by Wilcox J, Weinberg J and Conti J. They did not allow a ground of appeal to be raised which alleged generally that procedures followed by the Act were not observed. They said that a ground of appeal contending that there was no evidence to justify the decision was misconceived:
The RRT rejected the evidence proffered by the appellant concerning his alleged persecution and apprehension of further persecution by members or followers of the BNP, finding the same was lacking in credibility. His Honour held that he was not entitled to interfere with or reverse such factual findings of the RRT, and in so doing he was plainly correct. (Citation omitted). The primary Judge was therefore correct in rejecting the grounds for review before him.
Following the dismissal of his appeal, the applicant commenced his second proceeding for judicial review, by becoming a represented party in proceeding S89 of 1999 in the High Court of Australia, commenced by Mrs Lie. The papers concerning that joinder are not before me, but it is difficult to see how there was a proper basis for this, since the Tribunal's decision did not rest upon country information, whether favourable or unfavourable.
However, the applicant was permitted to file an individual application for an order nisi on 29 May 2003. The solicitor's affidavit did not identify any grounds for the grant of such an order. On 20 February 2004, Emmett J refused an order nisi and explained his reasons in a judgment concerning numerous applicants in the same position (see Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289). His Honour expressly noted, when refusing the order nisi, that his decision would not found any bar or estoppel against appropriate relief if grounds were established.
On 9 March 2004 the applicant commenced his third proceeding in relation to the Tribunal's decision, by filing an application in this Court invoking the same jurisdiction as the present application. The application contained general un-particularised grounds alleging failure to accord procedural fairness, failure to follow “proper procedure as required by the Migration Act”, reference to Muin's case, and a claim that the Tribunal had failed to address the question of adequate protection.
On 1 November 2004, Federal Magistrate Driver entertained an application by the Minister for summary dismissal of the application and for determination of a notice of objection to competency. His Honour proceeded on the latter basis, and held that the Tribunal decision was a privative clause decision so that the time bar under s.477(1A) precluded the bringing of his application (see Applicant S1279/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 748). He reached that opinion after addressing the grounds raised by the applicant. He also considered the effect of the previous Full Court decision, and noted that the Federal Court had “found no jurisdictional error in relation to the grounds of judicial review advanced before it”. His Honour then noted that the added claim in relation to Muin and Lie could not succeed, since in his Honour's opinion there was no “evidence that could sustain an allegation of procedural unfairness or procedural irregularity”. His Honour considered that the issue of adequate protection was irrelevant, given the Tribunal's reason.
His Honour concluded:
[8] The issue of jurisdictional error as raised in the present application has either been dealt with in the earlier proceedings in the Federal Court, or has no substance. In either event, it is clear that the decision of the RRT is a privative clause decision. It follows that the time limit on judicial review applications in s.477(1A) of the Migration Act applies. I have no jurisdiction to extend that time limit. I conclude that I have no jurisdiction to entertain the judicial review application any further.
In my opinion, the conclusion of Federal Magistrate Driver either gives rise to an issue estoppel in relation to the same issue arising in this case under s.477(1A) or, at least, indicates why the applicant's attempt to re-litigate that issue in the present case would be an abuse of process.
This is further demonstrated by the subsequent course of litigation by the applicant.
On 5 November 2004 the applicant applied for leave to appeal to the Federal Court from Driver FM's orders. On 15 December 2004 Gyles J dismissed that application (see Applicant S1279 of 2003 v Minister for Immigration [2004] FCA 1706). His Honour concluded:
In my opinion the applicant has not pointed to any appealable error in the judgment below, and I can detect no obvious error myself. Indeed, on my view, even if there were some arguable ground of appeal in relation to the basis for the decision, it would be inevitable that the proceedings would be dismissed by reason of one or more of res judicata, estoppel or abuse of process.
The applicant did not pursue that stream of litigation further. However, on 29 July 2005 he filed a very belated application to appeal from Emmett J's decision given in February 2004. A draft notice of appeal followed a familiar precedent invoking Muin and Lie. On 8 August 2005, Graham J dismissed the application (see S1279/2003 v Minister for Immigration [2005] FCA 1088). His Honour concluded:
In my opinion the application presently before the Court is without foundation. It would be entirely inappropriate to grant an extension of time within which an application for leave to appeal may be brought in the circumstances where the delay in lodging the application is to all intents and purposes unexplained. Furthermore, no material has been placed before the Court which would suggest in any way that the decision of Emmett J was attended by sufficient doubt to warrant it being reconsidered by a Full Court.
Within a month, the applicant had commenced his present proceeding. The grounds contained in the application make allegations that the Tribunal did not consider evidence, denied natural justice, was biased, denied procedural fairness, and wrongly used country information. There is also a reference to some legal authorities, and a claim “as a BNP politicians, I am the victim of systematic torture”.
None of these claims has been amplified with particulars, either in the application or in any subsequent document or submission of the applicant. They are all contentions which have previously been dealt with in the course of the previous litigation. Even if they were not, they are contentions which could reasonably have been previously raised, and no special circumstances are shown for allowing them to be raised in fresh proceedings (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).
The applicant's submissions to me today were that he still feared to return to Bangladesh on the basis of his family members being subject to harassment there, and he did not wish to return to conditions in Bangladesh. He sought further opportunities to present more evidence to the Tribunal. However, as I have explained to him – and as no doubt have all the other judges he has appeared in front of – it is not the function of the Court to address his refugee claims, nor can the Court remit the matter in the absence of jurisdictional error on the part of the Tribunal.
In my opinion, the history I have recounted above and the points I have made show undoubtedly that his present application is an abuse of process which should be dismissed under rule 13.10(c) of the Federal Magistrates Court rules.
I also consider that the history of his litigation, the documents used by him throughout its course, and his contentions to me today, reveal that he has no understanding of the need for finality in litigation and that he will continue to bring unmeritorious applications for the predominant purpose of protracting his entitlement to bridging visas. I therefore consider it appropriate to give a direction to the Registry of this Court that no application relating to the decision-making concerning his protection visa application should be accepted for filing without prior leave from the Court.
My above reasons also show that it is appropriate to award costs on an indemnity basis.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 28 November 2005