SZIIG v Minister for Immigration
[2008] FMCA 344
•7 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIIG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 344 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZIIG”. |
| Migration Act 1958 (Cth), ss.91X, 414, 476 Federal Magistrates Court Rules 2001 r.44.12 |
| Attorney-General v Wentworth (1988) 14 NSWLR 481 Bride v Campbell-Smith [2004] FMCA 848 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 SZAQW v Minister for Immigration & Multicultural Affairs [2006] FMCA 711 SZAQW v Minister for Immigration & Multicultural Affairs [2006] FCA 1332 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 SZBCE v Minister for Immigration & Multicultural Affairs [2006] FMCA 1897 SZBCE v Minister for Immigration & Citizenship [2007] FCA 454 SZCKB v Minister for Immigration & Multicultural Affairs [2006] FMCA 804 SZBFE v MIMIA [2005] FMCA 189 SZBFE v MIMIA [2005] FCA 1162 SZIIG v MIMA & Anor [2006] FMCA 1410 SZIIG v MIAC & Anor [2007] HCA trans 681 SZIIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 322 SZIPI v Minister for Immigration & Multicultural & Indigenous Affairs & [2006] FMCA 901 SZIPI v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 172 SZIPI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1035 |
| Applicant: | SZIIG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 301 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter. |
| Solicitors for the Respondents: | Ms M Palmer of Sparke Helmore |
ORDERS
The application filed on 11 February 2008 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 301 of 2008
| SZIIG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE JUDGMENT
The Proceedings
The applicant is a citizen of Bangladesh and is of the Muslim faith. He is seeking a protection visa on the basis that he holds a well founded fear of persecution for the reason of his political opinion and his relationship with a Hindu woman. He claims that he had been involved in the Bangladeshi National Party (BNP) and he had faced trouble in the past from members of the Awami League and fundamentalist Islamic organisations called Jamaat Islami. His conflict with the Awami League had resulted in false charges being placed against him. The conflict was ongoing. The applicant claims that he was still engaged to the Hindu woman even though at the time of the Tribunal hearing on 28 November 2005 he stated that they had not seen each other for eight years.
The present application in this matter was filed on 11 February 2008 and seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“Act”) in respect of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 17 January 2008 by Tribunal member Mr Hugh Whynham (reference number 071943893). The Tribunal decided that it did not have a jurisdiction to entertain an application which had been lodged with the Tribunal by the applicant on 13 December 2007. The application sought a review of the decision taken by the Delegate of the Minister on 31 May 2001, refusing to grant the applicant a protection visa.
The applicant had previously sought review of the same delegate’s decision by an application lodged with the Tribunal on 28 June 2001. The first Tribunal affirmed the delegate’s decision on 30 June 2003 and handed down on 20 July 2003 (RRT reference number No1/39354). The applicant unsuccessfully sought judicial review of the Tribunal’s decision by the Federal Magistrates Court; SZBFE v Minister for Immigration & Indigenous Affairs [2005] FMCA 189. The applicant appealed the decision by an application lodged with the Federal Court on 24 March 2005. On 24 August 2005, the Federal Court held that the Federal Magistrate erred in not setting aside the finding of the Tribunal on the issue of persecution for the reason of religion and set aside the Tribunal’s decision, in part, with orders that the matter be redetermined according to law: SZBFE v Minister for Immigration & Indigenous Affairs [2005] FCA 1162.
The matter was remitted to the second Tribunal for reconsideration. However, the delegate’s decision was again affirmed on 29 December 2005: (RRT reference number No5/52333). An appeal of that decision was dismissed on 14 September 2006 by the Federal Magistrates Court: SZIIG v MIMA & Anor [2006] FMCA 1410. A new application to the Federal Court was dismissed on 9 March 2007: SZIIG v MIAC [2007] FCA 322. A special leave application to the High Court on 4 April 2007 was also dismissed on 15 November 2007: SZIIG v MIAC & Anor [2007] HCA Trans 681.
The most recently constituted Tribunal, which is the subject of this review, held that the delegate’s decision of 31 May 2001 was an RRT reviewable decision. However, the delegate’s decision had been reviewed by a previous Tribunal in the circumstances set out above and concluded that a previous Tribunal had conducted a review and therefore already discharged its function under s.414 of the Act to review the delegate’s decision. In the circumstances, the current Tribunal concluded that as a previous Tribunal had discharged the requirement to review the delegate’s decision on 31 May 2001, the current Tribunal no longer had jurisdiction in relation to that decision.
The first respondent filed a response on 28 February 2008 in defence of the application. The respondents also filed the affidavit of Megan Louise Palmer sworn on 3 March 2008 setting out the previous litigation history of this applicant.
Consideration
In my opinion the Tribunal’s decision that it had no jurisdiction to review the delegate’s decision of 31 May 2001 was undoubtedly correct, and I can see no argument reasonably open to the applicant to the contrary. Consequently, the applicant’s substantive application to this Court, in effect seeking orders by way of mandamus to require the Tribunal to embark on a review of the delegate’s decision is doomed to fail were it to be permitted to proceed to a hearing. There is no argument available to the applicant which holds any prospect of success in establishing jurisdiction in the Tribunal to further consider his entitlement to a protection visa.
I pointed out to the applicant during the Show-Cause proceedings that the grounds contained in his application for review did not address the decision that the Tribunal made on 17 January 2008. Rather they were focused on the original claims made by the applicant in his protection visa application. In effect the applicant was seeking the Court to undertake a merits review on the material that he had placed before the delegate and the previous Tribunals. There is no mention as to the grounds of jurisdiction.
I agree with the written submissions provided by Ms Palmer that whilst the Act does not specifically preclude a further review application being submitted to the Tribunal, the scheme of review contained in the legislation makes a further application invalid. If the Tribunal considered a second application for review of a decision of the delegate, it would effectively be reviewing its own decision. The Tribunal does not have the power to conduct a further review of the original delegate’s decision unless the Court of competent jurisdiction has quashed an earlier decision on review and directs that a review application be conducted afresh: Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 at [317].
The above approach has been adopted in a number of cases before this Court and has been upheld on appeal as holding no error: SZIIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 322; SZCKB v Minister for Immigration & Multicultural Affairs [2006] FMCA 804: SZBCE v Minister for Immigration & Multicultural Affairs [2006] FMCA 1897 which was upheld on appeal; SZBCE v Minister for Immigration & Citizenship [2007] FCA 454; SZAQW v Minister for Immigration & Multicultural Affairs [2006] FMCA 711 which was upheld on appeal in SZAQZ v Minister for Immigration & Multicultural Affairs [2006] FCA 1332.
I also agree with Ms Palmer’s submissions that the litigation history of this applicant and the unmeritorious nature of the application to the Tribunal and subsequently to this Court are factors which demonstrate that this application is an abuse of process: SZASP v Minister for Immigration & Citizenship [2007] FCA 771 per Moore J at [22]-[23] where His Honour stated:
[22] The applications in each of the matters must be dismissed. Were leave granted, none of the appeals would have any prospect of success. Each is also an abuse of the process of this Court.
[23] In the past six months, I have now had before me nearly 40 migration applications or appeals which are of the same character as these five and which can each be described as an abuse of process. By the time these applications reach this Court, it is not uncommon for ten or more judicial officers to have considered and rejected proceedings instituted by the applicants in relation to the delegate's decision. The applicants can have little doubt about the futility of the proceedings. In the past many cases of the type dealt with in this Court have been the subject of special leave applications to the High Court, which, as far as I am aware, are invariably unsuccessful. Often a further round of litigant is commenced at a trial level in the Federal Magistrates Court, within three weeks of the application being dismissed by the High Court. This creates the framework for the litigant to pass through the primary hearing and appeal process again. Experience would suggest that the dismissal of these applications will also lead to application for special leave in the High Court.
As I indicated in my decision in SZIPI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 901 at [6]:
[6] … all that the applicant has done is filed another application in an attempt to start the whole circular process again. The applicant has not attempted to raise any new ground of review that was not put before the Courts on previous occasions. This is nothing more than an attempt by the applicant to further delay finality by misusing the court’s processes and is clearly an abuse of process, and is frivolous and vexatious: NBJZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119.
This approach was subsequently approved in the decision in SZIPI v Minister for Immigration & Multicultural Affairs [2006] FCA 1035 per Tracey J and an application for special leave in the High Court was refused in SZIPI v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 172.
As I have already alerted to, the applicant has not attempted by way of particulars or evidence to outline any meaningful ground of review. In effect, the grounds listed by the applicant do not address the decision for which it is seeking judicial review but instead is focused on re-visiting the issues which were raised in his protection visa application and argued by him before the delegate and the previous Tribunals. By doing so, he is inviting this Court to undertake a merits review of his original claims. Therefore the application is obviously untenable and manifestly groundless as to be utterly hopeless as well as being without reasonable grounds and having a collateral purpose. Taking into account the litigation history summarised above, the applicant then has habitually and persistently instituted proceedings relating to the primary decision regarding his application for a protection visa. Consequently the application is frivolous and vexatious in the terms described in Bride v Campbell-Smith [2004] FMCA 848 per McInnis FM at [43] where His Honour summarises what constitutes frivolous and vexatious proceedings as described in the decision: Attorney-General v Wentworth (1988) 14 NSWLR 481 per Roden J at [491].
Conclusion
I am satisfied that the application filed on 11 February 2008 should be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 at the first court date directions hearing because there is no arguable case for relief contained within the application. The applicant was provided with the respondent’s written submissions and supporting affidavit prior to the hearing informing him that an application to dismiss his substantive application for judicial review at this hearing. During the hearing before this Court, this was explained to the applicant via the medium of a competent, qualified interpreter identifying the substantial problems faced by the applicant in his substantive application but the applicant declined the invitation to make any oral submissions to the Court. I order that the applicant pay the first respondent’s costs on an indemnity basis.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date:
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