SZIBB v Minister for Immigration

[2008] FMCA 1164

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBB v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1164

MIGRATION – Visa – protection visa (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – repeat application – whether there is a res judicata between parties –whether it is abuse of process to file and application in respect of which there is a res judicata – whether the applicant should be allowed to file any further proceedings seeking judicial review.

PRACTICE & PROCEDURE – Summary dismissal – where no reasonable cause of action disclosed – abuse of process – whether frivolous or vexatious.

Migration Act 1958 (Cth), s.474
Federal Magistrates Court Rules 2001, rr.13.10, 13.11

SZIBB v Minister for Immigration & Anor [2006] FMCA 1210
SZIBB v Minister for Immigration & Multicultural Affairs [2006] FCA 1650
S1090 of 2003 v Minister for Immigration & Anor [2008] FMCA 1017 followed.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 followed.

Applicant: SZIBB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1537 of 2008

Judgment of: Scarlett FM

Hearing date: 28 July 2008

Date of Last Submission: 28 July 2008

Delivered at: Sydney

Delivered on: 28 July 2008

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The Application filed on 16 June 2008 is summarily dismissed under Rule 13.10 as no reasonable cause of action is disclosed.

2. In the alternative, the application is dismissed as an abuse of the process of the Court.

3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1537 of 2008

SZIBB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Application

1. The applicant, a citizen of Bangladesh, asks the Court to declare that a decision of the Refugee Review Tribunal made on 8 December 2005 is null and void.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.

2. The applicant also asks the Court to make an order in the nature of mandamus remitting his application for a protection visa to the Tribunal for determination according to law, and an order in the nature of prohibition restraining the Minister for Immigration and Citizenship, the first respondent, from removing him from Australia. 

3. The Minister by an application in a case, filed on 15 July 2008, asks the Court for summary dismissal of the applicant's application under r. 13.10 because

   (a)no reasonable cause for action is disclosed in relation to these proceedings; and

   (b)the proceeding or claim for relief is frivolous or vexatious; and

   (c)the proceeding or claim for relief is an abuse of the process of the Court.

4. The Minister also asks the Court for an order under r.13.11 directing that no further applications for review of the Tribunal decision, or other administrative decision relating to the application for a protection visa lodged on 11 November 2004, should be accepted for filing without prior leave of the Court.

Background

1. The applicant is currently in immigration detention at Villawood,
   New South Wales. He is a citizen of Bangladesh who arrived in Australia on 23 October 2004. He applied for a protection class XA visa on 11 November 2004. A delegate of the Minister refused his application for a visa on 11 July 2005. The applicant applied to the Refugee Review Tribunal for review of the delegate's decision on

   
   8 August 2005

   . 

2. He attended a hearing on 18 October 2005 and gave evidence about having been persecuted by Muslims in Bangladesh because he and his family were Buddhists. The Tribunal signed its decision on

   
   17 November 2005

   and handed the decision down on 8 December. The Tribunal affirmed the decision not to grant a protection visa to the applicant. 

Application for Judicial Review

1. The applicant commenced proceedings in this Court on 5 January 2006 seeking judicial review of the Tribunal decision.  His application was heard by Smith FM on 11 August 2006 and dismissed that same day[1].  The applicant's appeal against that decision was dismissed by Graham J in the Federal Court on 20 November 2006[2].

   [1] See SZIBB v Minister for Immigration & Anor [2006] FMCA 1210

   [2] See SZIBB v Minister for Immigration & Multicultural Affairs [2006] FCA 1650

2. The applicant has now filed another application for review of the Tribunal decision.  In his application, filed on 16 June 2008, he relies on four grounds: 

   (1)The Migration Act 1958 was not observed properly, and the RRT member, Mr David Connolly, did not act in good faith in making a decision.

   (2)The RRT decision was not reasonably capable of reference to the decision making power given to the RRT member.

   (3)The RRT member, Mr David Connolly, deprived me of natural justice; and

   (4)The Tribunal erred to find that there is a real chance that I'd be persecuted if I returned to Bangladesh due to my belief in Buddhist religion.

3. In his affidavit, also filed on 16 June 2008, the applicant proposes:

   (1)The RRT made the decision with a pre set mind and the Migration Act 1958 was not observed properly; and

   (2)Recently I have received some new evidences which I want to provide the Court to support my claim. 

Conclusions

1. The applicant produced two letters in Bengali which were translated by the interpreter.  They referred to threats allegedly made to people in Bangladesh about the application.  They appear to refer to events that have taken place since the Tribunal made its decision. 

2. The Tribunal decision has already been the subject of judicial review by this Court.  An appeal against the Court's decision was dismissed.  There has been a judicial determination of the question before this Court, namely, whether or not the Tribunal decision was affected by jurisdictional error.  It will not avail the applicant to claim, as he does in his affidavit, that he has new evidence to bring about his refugee claim.  The Court does not conduct merits review of the applicant's claims for a protection visa[3]. 

   [3] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

3. In any event, the letters that the applicant seeks to rely upon refer to fresh events and are irrelevant to the Tribunal decision that has already been reviewed. Because there has already been a judicial determination of the question before the Court, which has been found to be without error on appeal, there has been a final determination in respect of that issue between the parties.  Thus, there is a res judicata that operates in respect of that issue between these parties[4].

   [4] See S1090 of 2003 v Ministerfor Immigration& Anor (2008) FMCA 1017

4. It must follow that the application for further review of the Tribunal decision does not disclose a reasonable cause of action and should be dismissed for that reason.  In s.1090 of 2003, Emmett FM found that because there was a res judicata between the parties, the proceeding filed by the applicant in that case seeking further review of the Tribunal decision was an abuse of the Court's process.  Whilst this decision is not binding it is clearly on point and should be followed.

5. As it is clear that there are two grounds for summary dismissal of the application, it is not necessary to consider whether the proceeding or claim for relief is frivolous or vexatious. I would say, however, that any further application for review of the decision that has already been determined would not only be an abuse of process but would be likely to be found to be vexatious, which can lead to the Court making an order that an applicant may not institute a proceeding without leave of the Court, see r.13.11.

6. Spurious repeat applications to this Court in migration matters are costly and time consuming and should be dealt with promptly. 

   
   

   The Minister's lawyers should take steps to meet these applications on the first Court date so that they may be dealt with immediately. 

7. The application will be dismissed with costs. 

8. I am satisfied that this is an appropriate matter for costs and an appropriate matter for the claim of $1800. 

I certify that the preceding seventeenseventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  18 August 2008