SZIQH v Minister for Immigration
[2008] FMCA 104
•16 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIQH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 104 |
| MIGRATION – Application for review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – decision of the Tribunal previously upheld by the Federal Magistrates Court, the Federal Court and the High Court – new application dismissed as incompetent and an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth), rr.44.06, 44.11(a), 44.12 Judiciary Act 1903 (Cth) Migration Act 1958 (Cth), ss.424A , 476, 477 Migration Litigation Reform Act 2005 (Cth) |
| Port of Melbourne Authority v Anshun Pty Ltd (1981) 36 ALR 3 SZATV v Minister for Immigration & Citizenship [2007] HCA 40 SZBEU v Minister for Immigration & Citizenship[2007] FMCA 2093 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110 SZIQH v Minister for Immigration & Citizenship& Anor [2006] FMCA 1489 SZIQH v Minister for Immigration & Citizenship & Anor [2007] FCA 106 SZIQH v Minister for Immigration & Citizenship & Anor [2007] HCA Trans 672 |
| First Applicant: | SZIQH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3759 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 16 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Solicitors for the Respondents: | Ms Z McDonald of DLA Phillips Fox |
ORDERS
The application for judicial review filed 6 December 2007 is dismissed as incompetent and an abuse of process.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal decision of Ms Mila Males (RRT Reference N05/52883) made on 28 February 2006 and handed down on 21 March 2006 on the decision of the Delegate of the Minister for Immigration and Citizenship handed down on 1 December 2005 is to be accepted for filing without leave of this Court.
The applicant pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis fixed in the sum of $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2701 of 2007
| SZIQH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a citizen of India. He claims that due to his association with Muslims and his employment of Muslims, a group called Babbar Khalsa threatened him and he has a well-founded fear of persecution. The applicant claims that he was personally attacked and that his shop was looted and set on fire.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court on 6 December 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision, made on 28 February 2006 and handed down on 21 March 2006 affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal (reference NO5/52883). The applicant filed an affidavit sworn on 5 December 2007 which attached a copy of the Tribunal decision. He also filed in Court written submissions on 8 January 2008.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The application sets out three grounds of review:
1. The RRT denied proper application of law to the applicant.
2. The RRT denied natural justice to the applicant.
3. The RRT did not follow due procedure.
I note that all these grounds are made without particulars.
The grounds of opposition in the response filed on 28 December 2007 are:
2. The application filed on 6 December 2007 alleges that the RRT did not apply the law properly and denied natural justice. As no particulars are provided, the First Respondent opposes all the orders sought on the basis that no reasonable cause of action is shown.
3. The applicant has unsuccessfully sought judicial review of the same RRT decision in the Federal Magistrates Court (SYG1036/2006), Federal Court (NSD1971/2006) and the High Court (S85/2007). The First Respondent therefore opposes all the orders sought on the basis that there have been other judicial review proceedings in relation to the decision (rule 44.06(2)(c)), and that application is frivolous or vexatious.
4. The application seeks an extension of time under section 477 of the Act, as it is stated that the decision of the RRT was received by the applicant on 21 March 2007. However, the First Respondent’s solicitors have ascertained from material in relation to previous proceedings that the applicant did not attend the handing down of the RRT decision on 21 March 2006, and there is no other evidence of when actual notification occurred. In these circumstances an extension of time would not be required.
This matter has been before the Courts on three previous occasions. It has been to the Federal Magistrates Court initially, to the Federal Court to appeal that decision, and to the High Court on a special leave application. The applicant was unsuccessful on all three occasions. There is no affidavit material before the Court setting out reasons for the new application.
Consideration
At the first Court date of 8 January 2008, I made orders that the application be listed on 16 January 2008 for a hearing under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). The applicant received the first respondent’s response indicating that it would seek to have this new application dismissed. I informed him that the written submissions filed on that day would be considered at the hearing of 16 January 2008.
At the commencement of the show cause hearing, I asked the applicant if he had prepared the written submissions himself. The applicant stated that he had not but had relied on a “friend” to assist him. When asked whether he understood its contents, he indicated that he did. I indicated that there were a number of issues raised in those submissions which I wished to clarify. The submissions suggest that the Tribunal had failed to notify the applicant in accordance with s.424A of the Act and that it had relied on certain authorities but had failed to notify him of the significance of those authorities to his application. I told the applicant that I had reviewed the Tribunal decision but was unable to find reference to any of those authorities in the decision. I also indicated that some of those cases were in fact decided after his matter had been considered. For example, SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 was published on 24 February 2006, only two days prior to the signing of the applicant’s Tribunal decision. This decision was certainly unavailable when the Tribunal held its hearing on 2 February 2006. SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110 was not published until 27 July 2007, SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 was not published until 2 August 2007 and SZATV v Minister for Immigration & Citizenship [2007] HCA 40 was not published until 30 August 2007. I said to the applicant that I found it difficult to find a breach of s.424A in relation to decisions which, in some cases, did not come into existence until a year after the Tribunal made its decision in his case. The applicant did not wish to comment on this issue.
In SZBEU v Minister for Immigration & Citizenship [2007] FMCA 2093, Nicholls FM stated that there were a number of issues raised in that case which had no relevance to the matter before him. I note that those same cases have been raised by this applicant in the submissions before this Court. I again asked the applicant if he wished to comment on that issue but he declined.
I reminded the applicant that the first question I asked him was if he understood the content of the submissions he filed in support of his application. I do not intend to consider the exceptions under s.424A(3) of the Act as I am satisfied that these submissions are ill-conceived and have absolutely nothing to do with this Tribunal decision.
The applicant’s written submissions contain the following paragraph:
The term obligatio erga omnes concerns the legal implications of a crime’s characterisation as jus cogens. There is some uncertainty as to these implications, and whether obligatio erga omnes involves the imposition of obligations and duties on states or merely the granting of certain rights. For example, if a crime is characterised as jus cogens, does this mean that a state is under a duty to prosecute or extradite the perpetrator of the crime, or simply that a state has the right to prosecute or extradite? Given that jus cogens compromises, by definition, peremptory norms of international law, it would seem that the characterisation of a crime as jus cogens should be understood as imposing duties on states. This view is supported by Bassiouni, who considers that one of the consequences of such a characterisation is that states must recognise the universality of jurisdiction over such crimes and must not grant immunity to the violators of such crimes. Obiter dicta by the International Court of Justice in Barcelona Traction (Second Phase) referred to the prohibition of genocide as an obligation erga omnes ‘in which all States have a legal interest’.
I asked the applicant to explain what this paragraph had to do with the issues currently before the Court. He indicated that he did not understand.
I indicated that prior to the first Court date the first respondent’s solicitors had sent documents to the applicant indicating that they were going to challenge his application on a number of grounds. With this knowledge, the applicant handed up written submissions at the first Court date. Those written submissions raise a number of interesting aspects which the applicant argues was the basis for refusing his claim. I invited the applicant to explain where the 15 page submissions address the issues in his application lodged on 6 December 2007.
Although I understand the difficulty the applicant faces because he does not speak the language and does not understand our legal system, I suggested that he had sought assistance in the preparation of his case and in particular the submissions. I particularly note that the submissions are very similar to submissions in another application heard by Nicholls FM on 30 December 2007. A large number of issues raised before Nicholls FM have been repeated in these submissions. Unfortunately, in both cases the written submissions bear absolutely no relationship to the applications. I indicated to this applicant that his submissions were of no assistance to him whatsoever and do not address any of the issues before the Court.
I then asked the applicant to refer to his application filed on 6 December 2007 and in particular the three grounds listed above at [3]. I asked the applicant what was new in the three grounds which had not been previously raised in the Federal Magistrates Court, the Federal Court or the High Court. The applicant indicated that he did not know the answer because both the application and the submissions were based on what he was advised to do.
The Tribunal decision was initially reviewed by Scarlett FM who did not find any error in the grounds of that application. In addition, Scarlett FM indicated that because the applicant was a self-represented litigant, he assessed the Tribunal decision and formed the view that it did not contain any error: SZIQH v Minister for Immigration & Citizenship & Anor [2006] FMCA 1489 (handed down on 25 September 2006).
The decision of Scarlett FM was appealed in the Federal Court which dismissed the application on 14 February 2007: SZIQH v Minister for Immigration & Citizenship & Anor [2007] FCA 106 per Nicholson J.
The applicant’s special leave application to the High Court was rejected by Gummow and Kiefel JJ who stated that the decisions of Scarlett FM, Nicholson J and the Tribunal contained no error.That decision is recorded in SZIQH v Minister for Immigration & Citizenship & Anor [2007] HCA Trans 672 which was handed down on 15 November 2007 (S85 of 2007).
Ms McDonald, for the first respondent, indicated that the Application in a Case and the affidavit in support affirmed by Julian D’Arcey Pinder on 14 January 2008 were refused by the Registry for filing. Further, Ms McDonald’s firm attempted service on the applicant at his residential address in Blacktown on 15 January 2008. However, the courier service was unable to serve the documents as what was given as the applicant’s residential address was in fact a construction site. Copies of the documents were also forwarded to the applicant’s postal address (a post office box) and they would not have been received until the day of the hearing. I asked the applicant to confirm that the Blacktown address was in fact a construction site, to which he responded that the house was being renovated and he was in fact living elsewhere. He also confirmed that he had not filed a notification of change of address with the Court Registry.
I granted Ms McDonald leave to file both documents and that I would deal with them in the following way:
a)I will put the Application in a Case to one side. I indicated that I would treat this matter as a show cause proceeding but would adjourn it to 16 January 2008 to give the parties adequate time to prepare their case.
b)The affidavit of Mr Pinder annexes copies of the previous decisions made by the Courts and these have been in my possession prior to the first Court date. Similarly, the Tribunal decision was filed by the applicant with his affidavit. Consequently, the affidavit of Mr Pinder does not contain any material not been previously provided by the applicant or which were not previously available to me.
I am satisfied that the applicant has exhausted all avenues of review and has unsuccessfully sought judicial review of the same Tribunal decision in the Federal Magistrates Court (SYG1036 of 2006), the Federal Court (NSD1971 of 2006) and the High Court (S85 of 2007). Given this litigation history, I am satisfied that this application should be dismissed under r.44.06(2)(c) of the Rules in that there are, or have been, other judicial review proceedings in relation to the decision.
I am also satisfied that the applicant could have previously raised any of the issues in his current application in his first application for judicial review heard by Scarlett FM. In the circumstances, the principle of Anshun estoppel applies and there are no special circumstances to justify its non-application. Anshun estoppel applies to every review issue which properly belongs to the subject of the earlier litigation, which a party exercising reasonable diligence might have brought forward at the time of the earlier proceedings, see Port ofMelbourne Authority v Anshun Pty Ltd (1981) 36 ALR 3 at [602] per Gibbs CJ, Mason and Aickin JJ:
the matters relied upon…in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.
I recognise that this Court does have the discretion to allow these proceedings to continue. However, I am satisfied that the current application has no prospects of success, being a factor which weighs against the exercise of discretion as well as providing an independent basis for dismissing the application.
I also accept Ms McDonald’s submission that this application has no prospects of success because no new grounds of judicial review have been identified or particularised. The application should be dismissed under r.13.10(a) of the Rules.
I believe that the applicant has filed another application in an attempt to start the whole circular process again. This is nothing more than an attempt to further delay finality of proceedings by misusing the Court's processes, which is clearly an abuse of process.
On the applicant’s own admission, the written submissions tendered by him in this application were prepared by an unidentified third party and do not specifically relate to this application in any respect. I have noted the distinct similarities between these submissions and those considered by Nicholls FM in SZBEU. His Honour commented in that decision that those submissions were also distinctly similar to submissions in other matters he had previously considered. In the circumstances, I believe that it is completely unnecessary to explore the issues raised in the submissions because of their absolute lack of relevance. I am satisfied that the application should be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 6 February 2008
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