SZJON v Minister for Immigration & Anor - [2008] FMCA 1279

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJON v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1279

MIGRATION – Visa – protection visa – Refugee Review Tribunal – repeat application for review of RRT decision.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process.

Migration Act 1958 (Cth), ss.422B, 424A, 476

Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476
SZJON v Minister for Immigration & Anor [2007] FMCA 1228
SZJON v Minister for Immigration and Citizenship and Anor [2007] FCA 1993
SZJON v Minister for Immigration and Citizenship and Anor [2008] HCASL 397
Rahman v Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 73

Applicant:

SZJON

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2074 of 2008

Judgment of:

Scarlett FM

Hearing date:

1 September 2008

Date of Last Submission:

1 September 2008

Delivered at:

Sydney

Delivered on:

1 September 2008

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application for an adjournment is refused.
The application filed on 11 August 2008 is dismissed as an abuse of process.
No further application for review of the decision of the Refugee Review Tribunal signed on 5 September 2006 and handed down on 26 September 2006 is to be accepted for filing without leave of the Court.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $1000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2074 of 2008

SZJON

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The substantive application before the Court is an application for review of a decision of the Refugee Review Tribunal. The application was filed on 11 August 2008 and seeks review of a decision of the Refugee Review Tribunal that was signed on 5 September 2006 and handed down on 26 September 2006.
The Minister for Immigration and Citizenship opposes the application and claims that the Applicant has not raised an arguable case for the relief claim under r.44.12(1)a. The Minister, in a response filed on 28 August 2008, claims that there have been other judicial review proceedings in relation to the decisions and the solicitor appearing for the Minister today, Ms Attard, has submitted that the Applicant's application is an abuse of the process of the Court and should be dismissed.
She also seeks an order restricting the Applicant from commencing any other proceedings for review of this decision of the Refugee Review Tribunal without leave of the Court.
In his application, the Applicant seeks to rely on two grounds:
(1)the Tribunal breached the requirements of s.424A of the Migration Act; and in the particulars of that ground, claims that the Tribunal failed to comply with the Common Law Rules of procedure of fairness;
(2)the Tribunal erred in its approach to the claim that political parties are, from time to time, involved in armed clashes with the police and with each other as part of the political milieu of Bangladesh and challenges the Tribunal's finding that this does not mean that there is persecution within the meaning of the Convention.
In an affidavit filed in support the Applicant claims that the decision in the High Court in Plaintiff S157 of 2002 v Commonwealthof Australia[1]gives him the right to lodge this application and that the Tribunal made an error of law, a jurisdictional error and failed to follow procedural fairness. He also submits in the affidavit that there are still arguable grounds remaining in respect of his application for review.
[1] (2003) 211 CLR 476
The Applicant was not able to articulate how it was that the decision in Plaintiff S157 of 2002 gave him the right to lodge an application to review of a decision of the Tribunal that has already been subject to judicial review by this Court and has been the subject of appeals and applications for special leave to appeal to the Federal Court and to the High Court of Australia.
The Minister relies on the affidavit of Judith Pownall, solicitor filed on 28 August 2008 setting out the history of this matter.
The Applicant arrived in Australia on 28 March 2006 and applied for a Protection Visa on 13 April 2006. A delegate of the Minister refused the application for a Visa on 4 May 2006. On 25 May 2006 the Applicant applied to the Refugee Review Tribunal for review of the Delegate's decision.
The Tribunal conducted a review and the Applicant appeared before the Tribunal on 8 August 2006 to give evidence and present arguments. The Tribunal signed its decision on 5 September 2006 and handed the decision down on 26 September, affirming the decision not to grant the Applicant a Protection (Class XA) Visa.
The Applicant then, on 24 October 2006 applied to the Federal Magistrates Court for judicial review of the Tribunal decision. That application was heard by Smith FM on 18 July 2007. His Honour delivered a decision that the same day, dismissing the Application with costs.[2]
[2] See SZJON v Minister for Immigration & Anor [2007] FMCA 1228
The Applicant then filed a Notice of Appeal against His Honour's decision. That Notice of Appeal was filed on 6 August 2007 and set out for grounds of appeal to which I will refer later. For some reason one of the Orders sought was an Order setting aside Orders made by Cameron FM who had not of course, heard these primary decisions before.
In any event, the appeal was dealt with by Lindgren J who handed down a decision on 14 December 2007, dismissing the appeal with costs.[3]
[3] See SZJON vMinister for Immigration & Citizenship [2007] FCA 1993
The Applicant then on 9 January 2008, applied to the High Court of Australia with special leave to appeal from the whole of the justice of Lindgren J. That application for special leave set out three grounds which I will refer later.
On 16 July 2008 Gleeson CJ and Hayden CJ dismissed the application for special leave to appeal.[4]
[4] See SZJON v Minister for Immigration & Citizenship and Anor [2008] HCASL 397.
What the Applicant then did on 11 August 2008, was apply again to this Court for review of the same decision. The solicitor for the Minister, Ms Attard submitted that there are no grounds for reopening the proceedings or rearguing the Applicant's claim. She referred specifically to the Applicant's two grounds:
(1) an alleged breach of s.424A of the Migration Act; and
(2)the alleged error in the approach to the claim that political parties are involved now in clashes with the police, and with each other, which the Tribunal found did not mean that there was persecution within the meaning of the Convention.
In respect of the s.424A point Ms Attard submitted that the Tribunal decision was based on the Applicant's own evidence and independent country information both of which are excluded from the operation of s.424A(1) by s.424A(3).
In respect of the point about clashes between political parties and the police and each other, Ms Attard submitted that there was no error on the part of the Tribunal, as the Tribunal was clearly following the decision of Healy J in Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 73. In that decision at para.10 his Honour said:
The fact that all political parties are from time to time involved in armed clashes with the police and with each other as part of the political milieu of Bangladesh, does not mean that there is persecution within the meaning of the Convention because the violence lacks the selective or discriminatory quality which is inherent in the notion of persecution and because it lacks the requisite "official" quality in the sense that it is official or officially tolerated or uncontrollable by the authorities of Bangladesh[5].
[5] Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 73 at [10]
The Applicant confined his submissions in the large part today to seeking an adjournment of the proceedings so that he could obtain legal assistance. I am not disposed to grant an adjournment.
I note that the Applicant has previously been legally represented when he appeared before Smith FM on 18 July 2007. He was represented by Mr Zipser of counsel. When he appealed to the Federal Court the Applicant was represented by Mr Young of counsel. It appears clear that the Applicant has previously had both advice and representation from two experienced members of the Bar in dealing with his application for review.
It would appear to be quite clear that as the Applicant is applying for review of the same decision with the Refugee Review Tribunal that has already been the subject of review he is not entitled to assistance from a lawyer on the RRT legal advice panel.
I look, too, at the Applicant’s grounds. He claims that the Tribunal breached the requirements of s.424A of the Migration Act. Ms Attard for the Minister has already submitted that the Tribunal did not do so, but in any event I note from the Notice of Appeal against the decision of Smith FM, that the Applicant claimed in ground four of his Notice of Appeal that the Tribunal failed to comply with the requirement of s.424A of the Migration Act.
It appears to be an argument that has already been raised and was quite clearly considered by Lindgren J on appeal[6]. Further, in the application for special leave to appeal filed on 9 January 2008 the Applicant again referred to the provisions of s.424A of the Migration Act in his grounds of appeal.
[6] See SZJON v Minister for Immigration & Citizenship [2007] FCA 1993 at [10]
It would appear to me that he has had ample opportunity to argue that claim on appeal from this Court and on an application for special leave to appeal.
The claim in the application of the breach of Common Law procedural fairness clearly cannot be allowed to stand as s.422B of the Migration Act has the effect of extinguishing the notion of Common Law procedural fairness[7].
[7] Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61.
The fact is that this is an application for judicial review of a decision that has already been the subject of judicial review. It has been the subject of an appeal which was heard in full and argued by counsel and it's been the subject of an application for special leave to appeal to the High Court.
It has been dealt with. There is absolutely no justification for bringing this application. It is quite clearly an abusive process of the Court. It has been commenced for an ulterior purpose which is as the Court well knows, to set up spurious legal proceedings in order to provide a justification for continuation of the bridging Visa. It is an application about merit and it should be dismissed as an abusive process. It is also appropriate for the Court to act firmly to stop further abuses of this nature and I will direct no further application for review of the Refuge Review Tribunal's decision. It should be accepted for filing without leave from the Court.
This application will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 10 September 2008