SZATR v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The applicant has brought proceedings challenging a decision of the Refugee Review Tribunal ('the Tribunal') that was made on 3 May 2003 and handed down on 27 May 2003, affirming a decision of the delegate not to grant him a protection visa. He applied to the Federal Magistrates Court for judicial review of that decision and, the Federal Magistrates Court dismissed the application: SZATR v Minister for Immigration [2004] FMCA 641. 2 Among other things, the applicant raised before Raphael FM the assertion that a letter which had been written by a lawyer engaged by the applicant's family in Bangladesh was one which should have been accepted but was not accepted by the Tribunal. His Honour, for reasons that he gave, did not find any jurisdictional error of law in the Tribunal's decision. The applicant appealed to this Court and on 9 December 2004, Moore J dismissed that appeal: SZATR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1588. 3 While his Honour noted - and I agree - that the reasons for the decision of the Tribunal were not particularly satisfactory in the sense that it was difficult to follow its reasoning, it was clear that it had accepted that the applicant's brother had been murdered in 1995, and that there was apparently a political aspect to the murder. However, as his Honour noted, the Tribunal does not appear to have accepted that the applicant's family had been harassed since the murder and that it took that approach because of what it perceived to be inconsistencies in the applicant's explanation as to why the harassment had taken place. 4 The claim of that harassment was found by his Honour to have underpinned the applicant's case before the Tribunal and indeed his application for a protection visa. He put forward a fear that he would be similarly harassed to the point where there would be a real chance that he would be persecuted for Convention reasons. The Tribunal rejected that claim. His Honour saw no error in Raphael FM's refusal of the application for judicial review. Undeterred, the applicant brought proceedings seeking special leave to appeal from the High Court of Australia. 5 On 4 August 2005, Gleeson CJ and Gummow J dismissed the application (SZATR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 483). Gleeson CJ giving the Court's reasons noted that: 'The [Federal Magistrates] Court dismissed his application on the basis that the applicant was in effect seeking a mere merits review of the Tribunal's decision. An appeal to the Federal Court (Moore J) was subsequently dismissed.' His Honour then concluded: 'We have reviewed the applicant's written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. There are insufficient prospects of success in any appeal to this Court from the decision of the Federal Court. Accordingly, special leave to appeal is refused.' 6 The applicant then commenced proceedings in the Federal Magistrates Court, again challenging the original decision. He did that on 6 March 2006. On 4 April 2006, Lloyd-Jones FM dismissed that application as an abuse of process of that Court: SZATR v Minister for Immigration [2006] FMCA 512. 7 His Honour reviewed the earlier rounds of litigation and noted that with the filing of the current application all that the applicant had done was to file another application in an attempt to start the whole process again. He had not attempted to raise any new ground of review that had not been before the courts on previous occasions ([2006] FMCA 512 at [4]). 8 However, quite apart from the fact that this may be an abuse of process, his Honour found - correctly in my view - that the applicant was out of time to bring the proceedings altogether. That is because s 477 of the Migration Act 1958 (Cth) ('the Act') applied to limit the time any such application could be brought to expire on 23 February 2006, being a maximum of 84 days allowed under a combination of s 477 of the Actand Schedule 1 cl 42 of the Migration Litigation Reform Act 2005 (Cth) ('the Migration Litigation Reform Act'). 9 The transitional provision in Schedule 1 cl 42 of the Migration Litigation Reform Act, effectively extended the time by which any application of that nature could be brought against a decision of the Tribunal of which the applicant had actually been notified to no later than 23 February 2006. That application having been commenced on 6 March 2006 was incurably out of time and therefore the Federal Magistrates Court had no jurisdiction with which to review the application. 10 I may add that had the applicant sought to bring the proceedings in this Court, s 477A of the Act would have prevented him from doing so for exactly the same reasons as would s 486A of the Act, had he sought to bring original proceedings in the High Court. For those reasons I consider that his Honour was right to have dismissed the proceedings. 11 The second reason that his Honour dismissed the proceedings was that the decision of the Tribunal was a privative clause decision. I see no reason to doubt that there was no jurisdictional error attendant upon the decision of the Tribunal. The matter was explored in the earlier litigation commenced in 2003, and there is no occasion for the Court to revisit that forensic attack upon the validity of the original decision. 12 Obviously, there may be cases in which it would be just to allow a person who had failed in one set of judicial review proceedings to re-agitate the correctness of the decision in later proceedings. It is not appropriate to lay down exhaustive criteria by reference to which the discretion falls to be exercised. Some regard was given to the scope for making more than one challenge to such earlier adverse decisions in judicial review proceedings in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 in the joint judgment of Gaudron and Gummow JJ at 108-109 [56]-[58]. 13 Although the exact point was not there considered, the Court clearly has a discretion whether or not to grant prerogative or constitutional writ relief in circumstances where a party has been guilty of unwarrantable delay, or has been acting in bad faith, or in other circumstances where, by his conduct, he has not come with due diligence to ask the court to set aside the earlier decision, the court can refuse to exercise its undoubted discretion to grant relief; see too SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 183-184 [80] per McHugh J, 211-212 [210]-[211] per Hayne J, with whom Kirby J agreed at 203 [174]. 14 The applicant has given no sufficient explanation, apart from the fact that he is not a lawyer, for not raising in the earlier round of judicial review proceedings any point that he wishes to make here for the first time. He did seek to argue that the letter from the lawyer, which he had given to the Tribunal, was not a matter that had been put to him as a reason for his story being not accepted. This, he said, showed that the provisions of s 424A of the Act had been infringed because the Tribunal had not given him notice in writing of any such information that it considered would be a reason, or a part of a reason for affirming the decision that was under review. 15 However, because he gave to the Tribunal the lawyer's letter, s 424A(3)(b) expressly provided that the obligations under s 424A(1) did not apply to that letter. 16 In Walton v Gardiner (1993) 177 CLR 378 at 393 Mason CJ, Deane and Dawson JJ held that proceedings would constitute an abuse of process where, among other things, they could be converted into instruments of injustice or unfairness, where they could be clearly seen as being foredoomed to fail, or where if, notwithstanding, the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for reason that they sought to litigate anew a case which has already been disposed of by earlier proceedings. 17 Their Honours approved what Lord Diplock had said of the jurisdiction of the court in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536: '…the inherent power of any court of justice must possess to present misuse of its procedure in a way, which although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among like-thinking people.' 18 Recently the High Court affirmed the significance of the ability of the Court to protect its own processes against abuse in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [9]. 19 I am not satisfied that in this case the applicant has established that the decision in question, namely that of Lloyd-Jones FM, has been attended with sufficient doubt to warrant the grant of leave. Nor am I satisfied that any substantial injustice would result from the refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29]. Accordingly, I dismiss the application with costs which I fix at $1,200. 20 I order that the applicant not file any further proceeding in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 5 May 2003 and handed down on 27 May 2003 or the decision of the delegate of the first respondent dated 22 November 2001 refusing to grant a protection visa without the leave of a Judge of this Court.