SZHGH v Minister for Immigration

[2006] FMCA 281

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 281

MIGRATION – Notice of motion to strike out application as abuse of process.

Applicant: SZHGH

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG 2822 of 2005

Judgment of: Raphael FM

Hearing date: 23 February 2006

Date of Last Submission: 23 February 2006

Delivered at: Sydney

Delivered on: 23 February 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Substantive application dated 4 October 2005 dismissed.

2. Applicant to pay the respondent's costs assessed in the sum of $2000.

3. No further application shall be accepted from this applicant in

   
       

   respect of the decision of the delegate of the Minister made on

   
   

   8   March 2001 or the decision of the Refugee Review Tribunal made on 30 January 2003 without leave of the court.  This order does not extend to any appeal against this order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2822 of 2005

SZHGH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. I have before me a notice of motion to strike out an application filed on 4 October 2005 on the grounds that it is an abuse of the process of this court being a matter to which the doctrine of res judicata would apply.  The applicant applied to the Refugee Review Tribunal for a review of the delegate's decision on 28 March 2001 and on 30 January 2003 the Tribunal determined to affirm the decision not to grant a protection visa.  The applicant filed an application for review in the Federal Court on 26 February 2003.  On 20 March 2003 Branson J transferred the matter to the Federal Magistrates Court where it was heard by Baumann FM on 28 July 2003 and dismissed.  The applicant appealed the decision of Baumann FM.  On 18 September 2003 the appeal was dismissed by Madgwick J.  The applicant sought leave from the High Court of Australia to appeal the decision of Madgwick J. That application was dismissed by Hayne and Callinan JJ on 8 September 2005.  In dismissing the application Hayne J said:

   “Three complaints are made about what was done in either the courts below or the Tribunal:  that the Tribunal had no evidence which supported its decision; that the Tribunal's decision was affected by errors of the kind identified in Muin v Refugee Review Tribunal; Li v Refugee Review Tribunal (2002) 76 ALJR 966, 190 ALR 601; and that the Tribunal did not follow correct procedures. In none of the applications and in none of the material filed in support is there any attempt to identify a sufficient legal or factual basis in the particular case for any of these contentions or to relate the complaints made to what happened in the courts below or in the Tribunal which in any event in each case appears to us to have been entirely orthodox and untainted by any discernible error. The use of common form documents in the manner revealed by these applications is to be deprecated. Common form documents, used in this way, do not advance any useful argument on behalf of an applicant for special leave. None of these applications would enjoy any prospect of success. Each to be dismissed.”

2. The application which was filed in this court on 4 October 2005 indicates a view that the Tribunal made a decision in bad faith, that the applicant was deprived of natural justice, and a number of other matters about which no particulars are given and which appear to me to be reminiscent of very many other applications that I have seen.  It would appear that the applicant did not take into account the views of the High Court concerning common form documents.

3. The applicant appeared before me today, albeit some 10 minutes after the case had commenced and some 25 minutes after it was due to commence.  He told me that the situation had changed.  I assume he means the situation in his native country.  This may well be the case but he would be wrong to assume that this court has any power to consider his application on its merits.

4. I am quite satisfied that this application is an abuse of the processes of this court because to hear the case again would be to do so in face of the doctrine of res judicata.  The applicant's cases for review of the decision of the Tribunal have been heard by every available court.  He cannot just start again as if the previous decisions had not occurred.  It is appropriate that in addition to making an order dismissing this substantive application I should also do what I can to prevent the applicant from making further use of this court's time.  The orders which I shall make are:

   (1)    the substantive application dated 4 October 2005 is dismissed;

   (2)    the applicant is to pay the respondent's costs which I assess in the            sum of $2000;

   (3)    no further application shall be accepted from this applicant in     respect of the decision of the delegate of the Minister made on

   
   

   8 March 2001 or the decision of the Refugee Review Tribunal made    on 30 January 2003 without leave of the court.  This order does not extend to any appeal against this order.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: