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MIGRATION - Review of RRT decision - whether the application should be summarily dismissed as vexatious and an abuse of process - where applicant claimed to have a well-founded fear of persecution as a result of his knowledge about corruption within the government - where Tribunal found that the applicant would not suffer retribution as a result of this knowledge - where application that had been lodged with the Federal Court had been dismissed by consent - where applicant later lodged a draft order nisi in High Court - where matter remitted to Federal Court and application for order nisi refused - where applicant then lodged application for judicial review in Federal Magistrates Court.

SZDJA v Minister for Immigration [2004] FMCA 636 (17 September 2004)

SZDJA v Minister for Immigration [2004] FMCA 636 (17 September 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJA v MINISTER FOR IMMIGRATION
[2004] FMCA 636




MIGRATION - Review of RRT decision - whether the application should be summarily dismissed as vexatious and an abuse of process - where applicant claimed to have a well-founded fear of persecution as a result of his knowledge about corruption within the government - where Tribunal found that the applicant would not suffer retribution as a result of this knowledge - where application that had been lodged with the Federal Court had been dismissed by consent - where applicant later lodged a draft order nisi in High Court - where matter remitted to Federal Court and application for order nisi refused - where applicant then lodged application for judicial review in Federal Magistrates Court.




Federal Magistrates Court Rules 2001

Re St Leon; Ex parte NAB Ltd (1994) 54 FCR 371

Abrook & Ors v PR Bennett Investments Pty Ltd (1997) 77 FCR 59

Re Schlieske (unreported, Beaumont J, 23 December 1987)

Muin v Refugee Review Tribunal (2002) 76 ALJR 966

Applicant:
SZDJA




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ 1146 of 2004




Delivered on:


17 September 2004




Delivered at:


Sydney




Hearing date:


17 September 2004




Judgment of:


Raphael FM




REPRESENTATION

For the Applicant:


Applicant in Person




Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application be dismissed as vexatious and an abuse of process pursuant to Part 13 Rule 13.10(b) and (c) of the Federal Magistrates Court Rules.

(2) The applicant not be permitted to file any further application for review in relation to the decision of the Refugee Review Tribunal dated 1 May 2002 and handed down on 29 May 2002 except with the leave of the Court. This order shall not apply to any appeal from these orders.

(3) The applicant pay the respondent's costs assessed in the sum of $1,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ 1146 of 2004

SZDJA



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. There comes before me today a notice of motion issued by the respondent Minister that the application for judicial review filed by the applicant on 19 April 2004 be dismissed on the grounds that:

a) The doctrine of issue estoppel applies and is a complete bar to the application.

b) Anshun estoppel applies and there no special circumstances to justify its non-application.

c) Pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.

2. The applicant is a Tamil citizen of India who claimed to fear persecution from the Indian Government and opposition, members of the ruling party and the former Chief Minister of Tamil Nadu because he possessed knowledge of corrupt activities committed by the former Chief Minister. The Tribunal had found that his fear of persecution was not genuine because of his delay in providing important details about his claims and regarded as a fabrication, claims raised late by the applicant.

3. The Tribunal made a finding that although it accepted that the applicant was privy to information about the corrupt activity of the Chief Minister (she had been tried and imprisoned for that activity) and that she was directly or indirectly involved in crimes, including assault and arson with others involved in corruption, it was not satisfied that this brought the applicant within the Convention.

4. The Tribunal doubted that the applicant had any information that had not already been made available to the authorities and noting that the Minister involved had already been tried and gaoled for her activities, did not consider any information that the applicant had would put him at risk of retribution. This latter finding is a finding of fact, which it would be difficult for a Court to overturn.

5. The Tribunal made its decision on 1 May 2002 and handed it down on 29 May 2002. On 21 June 2002 the applicant filed an application for judicial review in the Federal Court. The proceedings were transferred by Sackville J on 19 July 2002 to this Court where they came before Federal Magistrate Driver on 16 September 2002. At that time the applicant was represented. On his behalf his advisers entered into consent orders on 12 September 2002 for the dismissal of the application and an order in that regard was made by his Honour on 16 September.

6. Approximately 11 months later on 6 August 2003 the applicant, who had not yet been removed from Australia, filed a draft order nisi and affidavit in the High Court of Australia. The draft order nisi contained the following grounds:

(a) The Tribunal failed to observe procedures required by the Act.

(b) That the Tribunal's decision involved an error of law, jurisdictional error and lack of procedural fairness.

(c) The application was denied natural justice.

(d) The decision of the Minister's delegate of 2 May 2000 involved constructive failure and a failure to exercise jurisdiction, and breached the rules of natural justice.

7. On 12 November 2003 Heydon J remitted the matter to the Federal Court. On 9 February 2004 Emmett J refused the application for an order nisi on the basis that the application disclosed no basis upon which relief could be granted. On 19 April 2004 the applicant filed an application for review in this Court. He complains that:

1) The Tribunal made its decision in bad faith.

2) The Migration Act was not observed properly.

3) The Tribunal did not provide him with procedural fairness.

4) The Tribunal did not believe his story without any explanation.

5) The decision was based on generalised facts but not particular claims.

6) The Tribunal did not investigate his claims.

8. On 29 June 2004 a document entitled "Applicant's Arguments for Competency" was filed in this Court. The document has a familiar ring to it. It relies on a number of cases and in particular that of Muin v Refugee Review Tribunal (2002) 76 ALJR 966. Insofar as the applicant is reliant on this authority, it is not pleaded in his main application and he does not provide any evidence that those matters which were the subject of agreed facts in the Muin case, can be established in his.

9. Before me today the applicant told me that he needed further time to obtain materials, that he was living in this country with great difficulty and that it was not safe for him to return. These are not matters which go to the competency of the proceedings. He also handed me up a piece of paper presumably written by a third party which indicates that his application for judicial review is based on new grounds of procedural fairness and denial of natural justice and that he is going to make a full submission after receipt of the transcripts of the Tribunal hearing and the audio cassette. I notice that he has a copy of the audio cassette on the bench in front of me and I am also aware that no provision for transcripts is available unless the applicant pays for that himself.

10. There is Federal Court authority to the effect that a consent dismissal of proceedings would not prevent an argument of either res judicata or Anshun estoppel applying: Re St Leon; Ex parte NAB Ltd (1994) 54 FCR 371; Abrook & Ors v PR Bennett Investments Pty Ltd (1997) 77 FCR 59 at 71 and Re Schlieske (unreported, Beaumont J, 23 December 1987 at page 22). But it seems to me that the real vice in this application is that it is an abuse of the process of this Court. To return to this Court seeking judicial review in circumstances in which an application for an order nisi in the High Court has been dismissed is an application too far. The applicant has made generous use of the privileges granted by the rule of law for him to have the decisions of Tribunal reviewed. An end must now come.

11. In my view, this application is both vexatious and an abuse of process, and I propose to dismiss it pursuant to Part 13 Rule 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules. I will also order that the applicant not be permitted to file any further application in relation to the decision of the Refugee Review Tribunal dated 1 May 2002 and handed down on 29 May 2002 except with the leave of the Court. This order shall not apply to any appeal from these orders.

12. I order that the applicant pay the respondent's costs which I assess in the sum of $1500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 23 September 2004
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