SZIXK v Minister for Immigration

[2008] FMCA 159

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXK v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 159

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 “SZIXK”.

Migration Act 1958 (Cth), ss.91X, 476
Federal Magistrates Court Rules 2001 (Cth), rr.13.10, 44.06

Port of Melbourne Authority v Anshun Pty Ltd (1981) 36 ALR 3
SZIXK v Minister for Immigration & Anor [2006] FMCA 1372
SZIXK v Minister for Immigration & Citizenship & Anor [2007] FCA 143
SZIXK v Minister for Immigration & Citizenship & Anor [2007] HCA Trans 667
Walton v Gardiner (1993) 177 CLR 378

Applicant: SZIXK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3816 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 31 January 2008

Delivered at: Sydney

Delivered on: 31 January 2008

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Tamil interpreter

Solicitors for the  Respondents: Ms R Styles of Clayton Utz

ORDERS

1. The application filed on 12 December 2007 is dismissed as incompetent and an abuse of process.

2. No further application to review the decision of the Refugee Review Tribunal of Andrew Mullin (reference number NO6/53049) made on 18 April 2006, or the decision of the delegate of the Minister for Immigration & Citizenship (CLF2005/86920) made on 22 December 2005, is to be accepted for filing without leave of this Court.

3. The applicant is to pay the first respondent’s costs and disbursements on an indemnity basis fixed in the sum of $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3816 of 2007

SZIXK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant is a citizen of India who claims to be a Muslim of Tamil ethnicity and to have been born in Tuticorin (Thoothukudi) in 1968.  His reason for seeking protection in Australia is that he was an activist in the Tamil Nadu Liberation Army (TNLA) which is a banned organisation in India.  He claims that he has not been convicted of any criminal offences but had been investigated for membership of a banned organisation and charged with anti-government activities.  He claims to be married with two daughters who remain in India. 

2. The applicant arrived in Australia on 1 September 2005 and lodged an application for a Protection (Class XA) visa with the Department of Immigration on 13 September 2005.  On 22 December 2005, a delegate of the Minister for Immigration refused to grant the protection visa and on 17 January 2006, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision.  The Tribunal decision of Andrew Mullin (reference N06/53049), dated 18 April 2006 and handed down on 11 May 2006, is the decision that the applicant seeks to review.

3. 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 Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of the Migration Act 1958.

   2. This application is not vexation not the abuse of process.  A Tribunal decision can be reviewed by the court second time under certain circumstances. SZCTH v Minister for Immigration (no 1)(2004) FACA 211

   3. The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.

4. Solicitors for the respondents filed an amended response on 7 January 2008 with the following grounds of opposition:

   1. An order that, pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001(Cth) (“Rules”), the application be dismissed.

   2. Further or in the alternative, an order that the applicant is barred by res judicata and/or is estopped from bringing these proceedings.

   3. Further or in the alternative, an order that the application is incompetent by virtue of section 474 of the Migration Act 1958 (Cth).

   4. That no further application by the applicant to review the decision of a delegate of the First Respondent concerning the applicant, dated 22 December 2005, File Number: CLF2005/86920, or the decision of the Second Respondent, handed down on 11 May 2006, File Number: NO6/53049, be accepted for filing, except with leave of the court.

   5. That the applicant pay the first respondent’s costed fixed in the amount of $1000, pursuant to Part 2 Item 1(a) of Schedule 1 of the Rules.

   6. Such further orders as this Honourable Court sees fit.

5. This matter has been before the Courts on three previous occasions.  It was before the Federal Magistrates Court initially: SZIXK v Minister for Immigration & Anor [2006] FMCA 1372 (5 September 2006). An application for review of that decision was filed in the Federal Court of Australia: SZIXK v Minister for Immigration & Citizenship & Anor [2007] FCA 143 (16 February 2007). The applicant applied for special leave application to the High Court of Australia: SZIXK v Minister for Immigration & Citizenship & Anor [2007] HCA Trans 667 (15 November 2007). He was unsuccessful on all three occasions. There is no affidavit material before this Court setting out the reasons for this new application.

Consideration

1. At the first Court date held on 8 January 2008, the applicant did not appear at the scheduled listing time or after 30 minutes grace.  As there was no appearance, I adjourned the matter to 21 January 2008 and ordered the respondents’ solicitors to notify the applicant in writing of the new listing date. 

2. At the commencement of the directions hearing on 31 January 2008, I asked the applicant to say what aspect of the grounds in his application had not been before any of the three Courts previously.  The applicant was unable to respond to this question.

3. I indicated to the applicant when this matter was first heard by Smith FM in the Federal Magistrates Court, the applicant listed three grounds of review.  His Honour made the following observation:

   14. In relation to Ground 2, no particulars are provided, and I am unable to identify any information which was arguably not taken into account by the Tribunal. 

   15. The criticism in Ground 3 as to the Tribunal’s credibility finding, in my opinion, raises no arguable ground in relation to this present Tribunal’s decision. The concerns identified by the Tribunal were manifestly more than "vagueness or inconsistencies in recounting peripheral details". The contention that the Tribunal "did not give weight to the statements made by [the applicant]" does not do more than challenge the Tribunal’s factual assessments. 

   16. The document filed by the applicant subsequent to the first court date appears to me to reproduce an argument presented in a different case. Grounds 1 through 9 challenge reasoning by a Tribunal in relation to a relocation finding. However, the present Tribunal’s reasoning never took it into that area. 

   17. The further contentions appearing under the heading "Particulars" in that document are: 

   The Tribunal used critical adverse information obtained after the delegate’s decision, which was neither provided to the Applicant before the hearing nor put to the applicant during the hearing – MUIN.

   The Tribunal misapplied the test or alternatively misinformed the Applicant about the test.

   The Tribunal member failed to give proper and adequate reasons which he was required by the Act to do, and, therefore the Tribunal failed to exercise its jurisdiction.

   The RRT erred in failing to consider all claims and issues put forward by the applicant.

   18. The first of these paragraphs suggests there was a failure of procedural fairness or possibly a breach of s.424A. However, as I have indicated above, the information which was taken from the Department’s file, and which the Tribunal relied upon significantly, was fully and fairly put to the applicant both at the hearing and in a s.424A letter. I can see no argument available to the applicant that these procedures were defective. 

4. The applicant made two very brief submissions stating that his claims were true and that he must remain in Australia.  In the absence of any further submissions or evidence, his Honour made the following finding:

   21. I have considered all the material before me and I am not satisfied that the application has raised an arguable case for the relied claimed. I consider it appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

5. When the matter went before the Federal Court on appeal against the judgment of Smith FM.  After reviewing the matter, Tracey J made the following finding:

   10 In my opinion the learned Magistrate’s decision is not attended with sufficient doubt to warrant reconsideration by this Court. Moreover, were leave to be granted to appeal, there is no prospect that the applicant could succeed on the grounds on which he seeks to rely.

6. When the matter went before the High Court on a special leave application, Gummow J made the following observation:

   The applicant is a citizen of India who claims to fear persecution because he was an activist with the Tamil Nadu Liberation Army ("the TNLA"). On 18 April 2006, the Refugee Review Tribunal affirmed the decision of a delegate of the respondent Minister to refuse the applicant's application for a protection visa. The Tribunal did not find the applicant to be a truthful witness, and disbelieved his claims of involvement with the TNLA.

   An application for judicial review by the Federal Magistrates Court was dismissed by Smith FM on 5 September 2006. The Tribunal's adverse findings were untainted by jurisdictional error and there was no arguable case raised. An application for leave to appeal to the Federal Court was necessary but leave was refused by Tracey J on 16 February 2007.

   The application for special leave to appeal does not advance any question of law that would justify the intervention of this Court.

   There are no prospects of success on any appeal to this Court. Special leave is refused.

7. I again invited the applicant to raise any issue which he believed had not been previously addressed.  On his own admission, there was nothing new he wished to raise and he had no further submissions to make in support of his application.

8. I am satisfied that the applicant has exhausted all avenues of review as he has unsuccessfully sought judicial review of the same Tribunal decision in the Federal Magistrates Court (SYG1606/2006), the Federal Court (NSD1869/2006) and the High Court (S77/2007). Given this litigation history, I am satisfied that under r.44.06(2) of the Federal Magistrates Court Rules 2001 (Cth) (“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 Smith FM. In the circumstances, the principles of Anshun estoppel apply 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 earlier litigation which a party, exercising reasonable diligence, might have brought forward during the earlier proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 36 ALR 3 at [682] per Gibbs CJ, Mason and Aikin JJ.

9. 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, this being a factor which weighs against the exercise of that discretion as well as providing an independent basis for dismissing the application. I acknowledge the difficulty that the applicant faces because he does not speak English nor does he understand our legal system. However, he has in effect submitted three different sets of grounds of review. The original and amended application before Smith FM and a new set in this present application. However, all the grounds are general in nature and none focus on a particular aspect of the Tribunal decision the subject of review. Further, no attempts has been made to particularise the claim of error. In those circumstances, the application should be dismissed under r.13.10(a) of the Rules.

10. In Walton v Gardiner (1993) 177 CLR 378 at [393], Mason CJ, Deane and Dawson JJ stated:

    …Proceedings before a Court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to legitimate a new case which is already disposed of by earlier proceedings.

11. I believe what the applicant has done has been to file another application in an attempt to start the whole circular judicial review process again.  The applicant has not raised any new ground of review not been put before the Courts on previous occasions.  This is nothing more than an attempt to further delay the finality of proceedings by misusing the Court’s process which is clearly an abuse of process.  I am satisfied that the application be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  14 February 2008