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MIGRATION - Application to dismiss - where proceedings had already been heard and appealed up to High Court.

SZDOI v Minister for Immigration [2004] FMCA 612 (8 September 2004)

SZDOI v Minister for Immigration [2004] FMCA 612 (8 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDOI v MINISTER FOR IMMIGRATION
[2004] FMCA 612



MIGRATION - Application to dismiss - where proceedings had already been heard and appealed up to High Court.



Migration Act 1958 (Cth), ss.91R(1)(c), 418(3), 424A(1), 424A(3), 424A(3)(a)

Minister for Immigration v Yusuf (2001) 206 CLR 323

BC v the Minister for Immigration and Multicultural Affairs [2001] FCA 1669

Applicant:
SZDOI



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1430 of 2004



Delivered on:


8 September 2004



Delivered at:


Sydney



Hearing date:


8 September 2004



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed pursuant to Rule 13.10 of the Federal Magistrates Rules.

(2) The applicant may not institute any proceedings in this Court against the respondent seeking a review of the decision handed down by the Refugee Review Tribunal on 11 September 2002 without the applicant first obtaining leave of this Court.

(3) The respondent to notify the applicant within seven days of the orders made and the provisions of Rule 16.05(2) of the Federal Magistrates Court rules.

(4) The applicant pay the respondent's costs in the amount of $1,800.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1430 of 2004

SZDOI


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. There is before me today an application made by way of motion, filed by the respondent Minister and supported by an affidavit of Angela Louise Radich dated 27 August 2004. The Notice of Motion seeks the dismissal of the proceedings brought by the applicant for judicial review of a decision of the Refugee Review Tribunal made on 21 August 2002 and handed down on 11 September 2002.

2. I have had the pleasure of the attendance in my Court of the applicant on a previous occasion, 2 April 2003, when the very same decision of the Tribunal was brought to be reviewed. At that time the applicant was represented by an experienced migration solicitor.

3. Having considered the matters raised by him on behalf of the applicant, I was unable to accede to the request for review and gave my reasons for so doing in the judgment numbered [2003] FMCA 133.

4. The applicant appealed my decision to the Federal Court. When the matter was heard by Tamberlin J pursuant to a direction of the Chief Justice on 15 October 2003, His Honour dismissed the appeal.

5. The applicant then sought leave to appeal to the High Court. That appeal was abandoned. The applicant alleges that the abandonment was not due to any lack of legal armour, but purely to his inability to raise the appropriate fee.

6. Ten days after the application for special leave was deemed to be abandoned on 5 May 2004, the applicant filed this application and four days later he filed a further one, which on 24 August 2004 was dismissed by Registrar Hedge.

7. The grounds of the application are six-fold. The first three grounds relate to a failure to provide the applicant with procedural fairness and also make reference to a failure to comply with the provisions of ss.424A(1) and 424A(3) of the Migration Act 1958 (Cth) (the "Act").

8. The fourth ground is a ground based on the concept of Wednesbury unreasonableness. The fifth ground was a claim based upon the High Court decision of Minister for Immigration v Yusuf (2001) 206 CLR 323. The final ground relates to a failure to consider the question of whether or not the applicant could receive adequate State protection.

9. The respondent argues that these proceedings are an abuse of process. It was also argued that they should be dismissed on the grounds that ground number 4, relating to Wednesbury unreasonableness, is the subject of res judicata. The other grounds are infected by a failure to raise them in the previous proceedings invoking the concept of an Anshun estoppel.

10. The respondent also says in relation to the claims in respect of s.424A(1) that any country information utilised by the Tribunal was country information that was the subject of the exception falling within s.424A(3)(a). That in regard to the complaint under s.418(3) of the Act the Tribunal clearly states in its decision at page 20 of that document that it had regard to the material referred to in part B of the primary decision.

11. In so far as the applicant raises today grounds that were not raised in the initial proceedings, it would seem to me that the additional grounds are subject to the Anshun principle which was discussed seminally by Sackville J in BC v the Minister for Immigration and Multicultural Affairs [2001] FCA 1669 between [20-26].

12. His Honour came to the view that the Anshun principles would apply in a case such as this although he noted at [49] that special circumstances could exist which warranted the exercise of the Court's discretion to allow the application to proceed.

13. At [51] His Honour said:

"It is true that the applicant's claims, if accepted, suggest that his safety and even his life might be in peril if he were to be returned to Pakistan. Regrettably, that is true of very many, if not all, applications in this Court seeking judicial review of decisions refusing to grant protection visas. I do not think that this fact, of itself, justifies declining to apply the Anshun principle, if it is otherwise applicable. Even in cases of this kind, the policies underlying the Anshun principle retain their force."

14. If the applicant's submission is correct a legally represented applicant who fails on an application for judicial review of an RRT decision would be able to institute fresh proceedings in order to pursue grounds that had simply been overlooked or inadequately appreciated at the first hearing or even deliberately abandoned.

15. In so far as His Honour's remarks referred to a case where an applicant has been legally represented and the case has been thoroughly heard I believe they are correct. This is what has happened to the particular applicant before me today.

16. Any matters which he raises today could have been raised by Mr Jones at the first hearing.

17. I would also note that ground 5 is not particularised when, in order to be able to make any decision upon that ground, the fullest particulars would be required. But in addition there could be no suggestion that the type of Yusuf error that is being hinted at was not well known at the time the original case came before me.

18. I would make one further point and that is the applicant failed before the Tribunal because the Tribunal made a factual finding that his arrest and imprisonment were not convention related.

19. It also made a further factual finding, which I referred to in paragraph 12 of my judgment, that the type of detention did not fall within s.91R(1)(c) of the Act.

20. These findings would appear to preclude any prospect of the applicant succeeding even if he was allowed to press on with his application.

21. Under the circumstances I must accede to the Notice of Motion brought by the Minister. I make orders in accordance with the Short Minutes initialled by me and placed with the papers. For the benefit of the applicant these are:

i) The application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Rules.

ii) The applicant may not institute any proceedings in this Court against the respondent seeking a review of the decision handed down by the Refugee Review Tribunal on 11 September 2002 without the applicant first obtaining leave of this Court.

iii) The respondent to notify the applicant within seven days of the orders made and the provisions of Rule 16.05(2) of the Federal Magistrates Court Rules.

iv) The applicant pay the respondent's costs in the amount of $1800.

v) Order 2 does not apply to an appeal against these orders.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM


Associate:

Date: 15 September 2004
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