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MIGRATION - RRT decision - summary dismissal of application for judicial review - abuse of Court process - previous application dismissed in Federal Court - application doomed to failure on estoppel or discretion.

SZDNU v Minister for Immigration [2004] FMCA 884 (27 September 2004)

SZDNU v Minister for Immigration [2004] FMCA 884 (27 September 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDNU v MINISTER FOR IMMIGRATION
[2004] FMCA 884




MIGRATION - RRT decision - summary dismissal of application for judicial review - abuse of Court process - previous application dismissed in Federal Court - application doomed to failure on estoppel or discretion.




Federal Magistrates Court Rules 2001, Parts 6, 13

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.474(1), 483A

Blair v Curran (1939) 62 CLR 464

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

Applicant:
SZDNU




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1383 of 2004




Delivered on:


27 September 2004




Delivered at:


Sydney




Hearing date:


27 September 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


No appearance by applicant




Counsel for the Respondent:


Ms S Burnett




Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed under Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules 2001.

(2) Applicant to pay the Respondent's costs in the sum of $5000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1383 of 2004

SZDNU



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant filed on 11 May 2004 an application under s.483A of the Migration Act 1958 (Cth) ("the Migration Act") and s.39B of the Judiciary Act 1903 (Cth), seeking judicial review of a decision of the Refugee Review Tribunal ("the RRT") dated 11 December 2001 and handed down on 9 January 2002. The applicant gave as his address for service a residential address at Eastlakes, New South Wales and a post office box at Strawberry Hills, New South Wales. The application was listed before a Registrar on 19 August 2004, and she set it down for final hearing before me on 25 November 2004.

2. In his application, the applicant made the following allegations:

* that the RRT decision "was made in a Bad faith",

* that the Migration Act was "not followed properly while making this decision",

* that he was "deprived of natural justice by the Tribunal",

* that "Most of my claims were not considered and the seriousness of my claims were watered down".

3. On 7 September 2004, the respondent Minister filed an interlocutory application seeking an order that the application be dismissed pursuant to Federal Magistrates Court Rules 2001, Part 13 Rules 13.10(b) or (c). These allow the Court to dismiss an application:

13.10 ... if it appears to the Court that:

(b) the proceeding or claim for relief is frivolous or vexatious; or

(c) the proceeding or claim for relief is an abuse of the process of the Court.

4. The interlocutory application was returnable before me on 13 September 2004 at 10.15am. On that occasion, Ms Burnett appeared for the Minister and there was no appearance by or for the applicant. Since I was not satisfied that the applicant had been served within time in accordance with Federal Magistrates Court Rules 2001, Part 6 Rules 6.03, 6.05, 6.06, 6.11 and 6.12, I adjourned the interlocutory application to 27 September 2004, and directed that the Minister serve notice of the adjourned time and place by post addressed to both of the applicant's addresses for service.

5. On 27 September 2004, Ms Burnett appeared for the Minister and there was no appearance by the applicant. I was satisfied on an affidavit by Ms Burnett sworn on 24 September 2004 that the applicant had been duly served with notice in accordance with my previous directions. I was satisfied on material attached to affidavits sworn by Ms Burnett on 3 and 9 September 2004 that there were grounds for dismissing the substantive application under Rule 13.10(c) and decided that in the circumstances it was appropriate to order this notwithstanding the absence of the applicant. I indicated my reasons in the course of an exchange with Ms Burnett, which is imperfectly recorded in a transcript which is now available, and in a brief oral judgment. I then dismissed the applicant's application, awarded costs to the Minister and vacated the hearing listed for 25 November 2004.

6. On 24 November 2004, a request was received by my Associate for a written statement of my reasons for making these orders, for the assistance of the Federal Court in proceedings brought in that Court by the applicant. There has been some delay in preparing these, since no previous request for written reasons had been received, and it was necessary to obtain the file and the transcript of the proceedings and of my oral judgment.

7. The documents attached to Ms Burnett's affidavits showed the following:

i) On 1 February 2002, the applicant filed in the Federal Court an application for an order of review challenging the RRT decision on the grounds that his claims had "not been properly considered by the Tribunal", that his case "was not considered in accordance with the provisions of" the Refugees Convention, that "the errors made by the Tribunal will deprive the applicant of merits of the case and natural justice", and "the Tribunal has not taken into consideration the present political situation in Bangladesh in deciding the case".

ii) On 11 April 2002, Hely J after hearing the applicant dismissed the application on its merits. In the course of his reasons he said:

Nothing that the applicant has written and nothing which he put to me comes anywhere near disclosing even an arguable case for relief under s.39B of the Judiciary Act 1903 (Cth) which, in the light of the Migration Act 1958 (Cth) as it now stands, is the source of this Court's jurisdiction.

Similarly, nothing which the applicant has written and nothing that the applicant has put to me establishes an entitlement on the part of this Court to remit the matter to the RRT in the light of the privative clause contained in s.474(1) of the Migration Act.

iii) On 6 November 2002, a Full Court constituted by Emmett, Madgwick and Conti JJ dismissed an appeal from the orders of Hely J. Madgwick J gave the leading judgment, which concluded:

Because of the disturbing nature of the appellant's claims I have, for myself, examined the reasons of the Tribunal and, like the learned primary Judge, I do not see that there is any case under the law for the Court to intervene. One gathers from the language of the learned primary Judge that he had examined the matter himself with some anxiety. In my opinion Hely J was right for the reasons that he gave.

iv) Emmett J agreed, saying:

The conclusion reached by the primary Judge was that the Court, by reason of the operation of s.474, had no power to interfere with the decision of the Tribunal. His Honour was clearly correct in that conclusion and accordingly the appeal should be dismissed.

v) Conti J agreed with the decisions and reasons of Madgwick and Emmett JJ.

vi) On 2 December 2002, the applicant filed an application for special leave to appeal to the High Court of Australia.

vii) On 21 July 2003 a Deputy Registrar of the High Court certified that the applicant was deemed to have abandoned his application pursuant to O.69A r.13(1) of the High Court Rules due to his failure to comply with r.10(9) before 16 July 2003.

viii) The applicant filed a second special leave application on 31 July 2003, and this was deemed abandoned by a Registrar's certificate dated 3 February 2004.

ix) On 2 March 2004 the applicant filed in the High Court of Australia a document headed "Ex Parte Application For Leave To Issue A Proceeding", which appears to have sought the lifting of a direction by McHugh J that the Registrar should refuse to issue further proceedings without the leave of a Justice.

x) Following the filing of the present application in this Court on 11 May 2004, the solicitors for the Minister wrote to the applicant setting out the above history, and indicating to the applicant that:

In light of the numerous applications made by you and given the application currently before the High Court, we are instructed to seek summary dismissal of your application in the Federal Magistrates Court on the basis it is an abuse of process.

xi) In response, the applicant filed on 25 June 2004 a document headed "Applicant's Argument For Competency". This is a rambling document which mixes up statements concerning the merits of the applicant's refugee claims with legalistic assertions. It also says: "I informed the High Court registry that the application is not currently pending"
;.

8. The following paragraphs are my revised oral reasons given when dismissing the substantive application. Although I did not cite authority, I had in mind the discussion by Dixon J of res judicata and issue-estoppel in Blair v Curran (1939) 62 CLR 464 at 531-2; and the recent discussion of "Anshun estoppel" in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [36-39] and [66]. I considered the tests for summary dismissal identified in the authorities summarised at [41,860.5] and [41,860.15] of Butterworths' High Court and Federal Court of Australia Practice and Procedure.

9. In this matter, I have read the affidavits by Ms Burnett sworn on 3 September, 9 September and 24 September 2004. Ms Burnett moves on an application filed on 7 September 2004 for summary dismissal under Part 13 Rule 13.10(b) or 13.10(c).

10. For the reasons I have just indicated to Ms Burnett, in my view the matter is an abuse of process due to the fact that the applicant has pursued his claims for judicial review fully through the Federal Court and into the High Court. It is apparent from the judgments of the Judges in the Federal Court that they all addressed the merits of his claims for relief under s.39B of the Judiciary Act 1903 (Cth).

11. They also dismissed his application on the ground that the RRT decision was a privative clause decision, and therefore barred by s.474(1) of the Migration Act from review by that Court. This bar also applies in this Court. I consider that there is probably a res judicata or issue-estoppel in relation to that determination, that is that the decision is a privative clause decision.

12. In any event, in my view the applicant has clearly had a reasonable opportunity to pursue his applications on all grounds of judicial review, and has not been able to put forward any new grounds of review. His present application to this Court is brought over a year after his application to the High Court, and is plainly doomed to failure on principles of estoppel and discretion.

13. I dismiss the application.

RECORDED : NOT TRANSCRIBED

14. I will order that the applicant pay the respondent's costs assessed in the sum of $5000.

RECORDED : NOT TRANSCRIBED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 November 2004
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