SZBJQ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This application for leave to appeal was filed on 20 June 2007. By letter dated 13 August 2007 the applicant was notified of the listing of the matter before me today. The matter was called outside the Court, and no appearance was made. Ms Rayment who appears for the first respondent has asked that I dismiss the proceedings pursuant to O 35A r 3(1) on the ground that the applicant had failed to comply with orders of the Court for filing of written submissions. In my opinion, there is a more fundamental issue to be addressed. 2 The litigious history of the applicant should be taken into account in considering this matter, having been referred to in the written submissions of the first respondent that were filed on 2 July 2007. The affidavit in support of the application for leave to appeal from the decision of Scarlett FM: SZBJQ v Minister for Immigration [2007] FMCA 921, asserts that his Honour failed to find error of law in the tribunal's decision 'which was full of error', and failed to find that the tribunal 'did not follow the procedures fairly', and that he had been denied natural justice. The draft grounds of appeal which the applicant filed raise similar grounds of appeal, and add an assertion that the tribunal's decision was made in bad faith. None of these grounds is given any particularity. I am quite satisfied, for the reasons I shall give, that they have absolutely no substance. 3 Before I address what Scarlett FM decided, I need to set out the history of this matter. The applicant had been refused a protection visa by the Refugee Review Tribunal by a decision made on 9 July 2003 and handed down on 6 August 2003, affirming a decision of a delegate of the first respondent not to grant him one. Among other things, the tribunal had found that the applicant was not a credible or reliable witness, and that he was not entitled to a protection visa. 4 He applied to Driver FM, who refused his application for constitutional writ relief: SZBJQ v Minister for Immigration [2005] FMCA 626. His Honour found that the applicant had not provided any details of how the tribunal failed to afford him natural justice, and had made bald assertions about incorrect translations, which his Honour rejected. He found that no particulars had been given of the ground of bias in the tribunal's decision, and noted that the applicant had not identified any material or findings in support of the claim, and that there was no evidence of any actual state of mind of the tribunal which could constitute actual or even apprehended bias. Accordingly, he dismissed that ground. He also rejected the ground that the tribunal had failed to take into account relevant considerations. Driver FM found there was no jurisdictional error in the decision of the tribunal and dismissed the proceedings. 5 Hely J dismissed an appeal from that decision: SZBJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1346. He said there was no substance in the ground of failure to afford procedural fairness and that the applicant had not even attempted to establish that ground before Driver FM. Hely J found that there was nothing in the outline of submissions which the present applicant had put before Hely J which cast doubt upon the tribunal's findings about his credibility: SZBJQ [2005] FCA 1346 at [9]. Hely J said: 'The RRT's decision was given over two years ago and the appellant has had ample time since then to give consideration to any deficiencies which may exist in that decision. There was nothing put before me which would indicate that there is any practical utility in a further adjournment. The appellant must simply face up to the fact that he lost his case before the RRT because the RRT did not believe his claims.' 6 The applicant then sought special leave to appeal to the High Court. Hayne and Crennan JJ dismissed the application on 9 February 2006 saying that there was no reason to doubt the correctness of the decision of Hely J: SZBJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 030. 7 The applicant next applied again to the Federal Magistrates Court by an application filed on 24 February 2006. Lloyd-Jones FM dismissed the new proceedings on the ground that the application did not establish any jurisdictional error in the decision of the tribunal given in 2003, and did not raise any arguable claim. He also said that it was clear on the material before him that the applicant would be unable to succeed even in the absence of the preclusion worked by s 477 of the Migration Act 1958 (Cth), which required any claim to challenge the decision of the tribunal to have been brought by 23 February 2006, the actual claim having been filed one day later than that. Accordingly, his Honour dismissed the application on the grounds that it was out of time and incompetent. 8 The applicant then appealed to this Court. Moore J dismissed the appeal saying that it was not apparent that Lloyd-Jones FM had erred in dismissing the application on the basis he did and that it was foredoomed to fail: SZBJQ v Minister for Immigration and Multicultural Affairs [2006] FCA 837. 9 The applicant's application for special leave to appeal from Moore J was refused by Gummow and Heydon JJ on 8 February 2007: SZBJQ v Minister for Immigration and Multicultural Affairs [2007] HCATrans 033. After reciting the litigious history of the matter, their Honours said: 'The application for special leave to appeal seeks to overcome the manifestly credibility-based findings of the Tribunal that the applicant was not a member of the Jatiya Party. It does not identify any error of law in the conclusion of Lloyd-Jones FM and Moore J that the application for judicial review was incompetent by reason of being brought outside the time limits imposed by the Migration Litigation Reform Act 2005. The application was in any event an abuse of process, and was bound to fail on that ground also. There are no prospects of success on any appeal to this Court.' 10 On 28 February 2007 the applicant applied to the tribunal for a second time. On 5 April 2007 the tribunal held that it had no jurisdiction to hear the applicant's second application for review because it had already discharged its functions under the Act to review the delegate's decision of 14 April 2003, and noted the litigious history which I have just described. I am of opinion that there could not be the slightest doubt the tribunal came to the correct decision on that issue. 11 The applicant then filed on 8 May 2007 the application that came before Scarlett FM. The grounds of that application were that the tribunal had failed to accord natural justice, had made an error of law amounting to jurisdictional error by identifying the wrong issue, and had failed to exercise its jurisdiction under the Act or acted in an excess of that jurisdiction. Those grounds were directed to the second decision of the tribunal made on 5 April 2007. 12 Scarlett FM said that the tribunal's decision showed no error, and in addition noted that the second application to the tribunal had been made outside the time limit of 28 days set by s 412 of the Act. His Honour then went on to say (SZBJQ [2007] FMCA 921 at [9]): '[T]his case is just another example of a scam that is still doing the rounds, which is the scam of making a fresh application to the Tribunal out of time to review a decision that has already been reviewed. Applicants need to become aware of the fact that the Court is onto this particular abuse, because abuse it is. It is an application to the Refugee Review Tribunal that has no hope of succeeding where a decision has already been reviewed and appealed all the way to the High Court of Australia. This is the third time that this applicant has come back to Court … This is a most blatant abuse of process.' 13 I agree. The tribunal had discharged its function for the reasons that I gave in SZEHN v Minister for Immigration and Citizenship [2007] FCA 1451 today. The application was foredoomed to fail. In my opinion, it borders on being a contempt of the Court because it brought a claim that could not possibly succeed in circumstances where the applicant has already litigated, not once but twice, claims concerning the same decision. Those claims have been dismissed by the High Court of Australia on each occasion, and at every step in the Australian federal judicial system. 14 For those reasons, I am of opinion that this application should be dismissed on the ground that it is an abuse of the process of the Court, and that I should enjoin the applicant from bringing any further proceedings in relation to the decision of the Refugee Review Tribunal or the delegate from whom it is made without the leave of a judge of the Court. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.