SZHZR v Minister for Immigration
[2007] FMCA 1863
•24 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHZR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1863 |
| MIGRATION – Where applicant seeks review of a decision that has already been reviewed and appealed up to the High Court of Australia. |
| Federal Magistrates Court Rules 2001 Migration Act 1958, s.48B |
| SZHZR v Minister for Immigration [2006] FMCA 710 SZHZR v Ministerfor Immigration [2006] FCA 1466 Port of Melbourne Authority v AnshunPty Ltd (1981) 36 ALR 3 |
| Applicant: | SZHZR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2970 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 October 2007 |
| Date of last submission: | 24 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2007 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,000.00.
The Registry of the Court be directed that the applicant may not commence any proceedings, or bring any application to the Court, relating to his protection visa application made on 9 or 10 October 2003, the decision of the delegate on that application, or any decision of the Refugee Review Tribunal (RRT) relating to the delegate’s decision, or any notification of such decisions, without the leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2970 of 2007
| SZHZR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before me this morning has been brought by the first respondent seeking the striking out pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (the “Rules”) of an application filed in this court on 26 September 2007. In that application review is sought of a decision of the Refugee Review Tribunal made on 30 November 2005 and handed down on 20 December 2005. The Tribunal in that case came to the conclusion that the applicant was not a person to whom Australia owed protection obligations.
The applicant then took advantage of his rights under the Migration Act1958 to seek review of the Tribunal's decision before this court where the matter was consider by Scarlett FM SZHZR v Minister for Immigration [2006] FMCA 710. His Honour in published reasons for judgment dismissed the application. The applicant then appealed his Honour's decision to the Federal Court where the matter was heard by Emmett J. On 31 October 2006 his Honour published his reasons, SZHZR v Ministerfor Immigration [2006] FCA 1466. His Honour found there was no error on the part of the Federal Magistrates Court and dismissed the appeal with costs. The applicant then sought to appeal that decision to the High Court of Australia by filing an application for special leave on 23 November 2006. On 29 August 2007 Hayne and Crennan JJ dismissed the application. The applicant has therefore exhausted all the avenues of appeal open to him in relation to that particular Tribunal decision but, undismayed, he made the application to this court seeking review for the second time.
It is now clear that prima facie any attempt by an applicant to re-agitate a Tribunal decision that has been the subject of appeals up to the High Court of Australia constitutes an abuse of the process of this court, although this does not mean there may not be some very exceptional cases in which such an application could be considered. This case is not one of them. Before me today the applicant stated, possibly with much veracity, that the situation in Bangladesh had changed considerably since the matter was heard before the Tribunal in 2005. He stated that all the matters that he had expressed to the Tribunal as his fears had come true. But even if that is the case the appropriate procedure is not to try and re-agitate that Tribunal decision, it is to seek the leave of the Minister under s.48B of the Act to bring a new application based upon the new circumstances in the country from which the applicant fears persecution. If such leave is granted the delegate will then have an opportunity to consider the current history in the context of the applicant's narrative about his activities within Bangladesh.
I am satisfied that this attempt to re-agitate the original Tribunal decision is one that must be barred by the doctrine of res judicata. To the extent that the applicant may be suggesting some ground that was not agitated before the various courts, then he has not given me any reason of why the doctrine of estoppel formulated in the Port of Melbourne Authority v AnshunPty Ltd (1981) 36 ALR 3 would not apply. I am satisfied therefore that the application constitutes an abuse of the processes of this court and consequently dismiss it pursuant to Rule 13.10 of the Rules.
The Minister requests that I add an additional order preventing the applicant from filing any further process in this court in relation to the original delegate's decision and that of the Tribunal. I propose to accede to that request and make the order sought in paragraph 2 of the notice of motion.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
3
2