SZDBT v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for leave to appeal from a decision of Scarlett FM: SZDBT v Minister for Immigration [2007] FMCA 923, in which his Honour dismissed the applicant's application for constitutional writ relief in respect of a decision of the Refugee Review Tribunal given on 14 March 2007 in which it determined that it did not have jurisdiction to further review the applicant's case. That was because the tribunal had previously exercised its function of review in a decision it made on 24 May 2000 and handed down on 7 June 2000. There the tribunal affirmed a decision of the delegate refusing the applicant a protection visa. 2 The applicant first applied to the Federal Magistrates Court in March 2004 to challenge the decision of the tribunal given almost four years previously. Smith FM dismissed the application for constitutional writ relief: SZDBT v Minister for Immigration [2005] FMCA 312. He noted that an application had been listed for hearing before Katz J in March 2001, but the applicant had withdrawn the proceedings. Smith FM suggested that that confirmed his opinion that the then application was probably an abuse of process in the absence of an explanation for the delay, including the discontinuance of the proceedings before this court in 2001. 3 However, his Honour preferred to determine the proceedings on their merits. He found that the tribunal concluded on grounds which were cogent and, indeed, compelling, that the applicant had fabricated, and added to, a concocted claim. The tribunal found he had provided certain fraudulent documents from Bangladesh on which he sought to rely: SZDBT [2005] FMCA 312 at [2]. He rejected the claims that the tribunal had acted in bad faith, denied natural justice and failed to address evidence before it. He also rejected allegations that the tribunal's decision did not reflect material facts, that it was biased and that it mixed up facts and ignored other facts. His Honour concluded that on the material before him, none of the applicant's many challenges to the decision of the tribunal demonstrated a jurisdictional error affecting its decision: SZDBT [2005] FMCA 312 at [30]. 4 The applicant appealed to this court, and Wilcox J dismissed his appeal: SZDBT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 514. On that occasion, his Honour invited the applicant to put any submissions he had which went to whether the tribunal's decision had been affected by jurisdictional error after explaining that term. The applicant told Wilcox J that there was no submission he could put. He said the evidence he gave to the tribunal was true. He felt the tribunal should have believed him. His Honour pointed out that that raised a matter of fact and was outside the review jurisdiction of the court. The applicant accepted that situation so that in the end result, as his Honour concluded, nothing was put which could activate the court's power to interfere with the tribunal's decision. As his Honour noted, the major submissions put to Smith FM were ones that concerned the facts of the case, and he agreed with that. Wilcox J said that on his reading of the tribunal's decision, there was no arguable jurisdictional error and dismissed the appeal. The applicant then sought special leave to appeal from the High Court of Australia: SZDBT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 647, which dismissed the application on 30 August 2005. McHugh and Heydon JJ said there were no prospects of success for any appeal. 5 Next, the applicant commenced fresh proceedings on 12 September 2005 in the Federal Magistrates Court. They came before Driver FM, who dismissed the proceedings summarily and ordered that no further application for review of the tribunal's decision of May 2004, or the decision of the delegate which it affirmed could be filed without leave of the Federal Magistrates Court: SZDBT v Minister for Immigration [2005] FMCA 1802. On that occasion the appellant was represented by counsel. Driver FM concluded that the decision of Wilcox J conclusively found that the tribunal's decision was a privative clause decision and that the application before him was filed out of time. He held that the Court had no jurisdiction to entertain the review. Accordingly, his Honour summarily dismissed the matter. 6 Next, the applicant reapplied to the tribunal, as I have said, which dismissed his application on 14 March 2007. It did so on the basis that it had no jurisdiction to deal with it because its earlier decision in 2000 had determined the applicant's entitlement to a review of the delegate's decision. 7 The tribunal referred to the applicant's submissions made to it of 9 March 2007 concerning the deterioration in the situation, as he asserted, in Bangladesh and its posing a greater risk for him. It referred to his claims to have been persecuted by various political parties of different persuasions in Bangladesh and to his claimed fears which he wished to have the tribunal revisit following its earlier refusal of a protection visa. He referred to the failure of the first tribunal to have put to him a report by the US Bureau of Democracy, Human Rights and Labour which had been used by the previous tribunal as country information to make findings about the use or creation of fraudulent documents emanating from Bangladesh. 8 The tribunal noted the submissions that the applicant sought to make about that and that he had unsuccessfully sought judicial review of the earlier decision. The tribunal found that it had already discharged its functions under the Act to review the delegate's decision, and therefore it no longer had jurisdiction to deal with the matter. I am of the opinion that that is indubitably correct. 9 The applicant then applied for review of the 2007 decision of the tribunal. This came before Scarlett FM, who, as I have previously said, dismissed it. His Honour made an order that no further application for review of any decision of the Refugee Review Tribunal concerning the applicant was to be filed without leave of a federal magistrate. He said that the claim was a particularly egregious example of a scam in which an applicant applies for a protection visa, when the application is unsuccessful seeks judicial review, and when that process is exhausted brings a further application to the tribunal to review the delegate's decision again. He held that the application then before him was a blatant abuse of process, that there was no jurisdictional error, that the application was totally devoid of merit, and dismissed it. 10 The applicant then filed an application for leave to appeal from that decision in this court. He used a boilerplate affidavit which asserted that the Federal Magistrates Court failed to find an error of law in the tribunal's decision which 'was full of error', and it failed to find that the tribunal did not follow procedures fairly, and that he had been denied natural justice. The draft notice of appeal added a ground that the tribunal's decision was made in bad faith. 11 Before me, the applicant - who originally appeared with the assistance of an interpreter but then was able to address me clearly and articulately in English - said that the reason he was here for another time was because he had given documents to the tribunal which it had rejected and that he needed to prove that the tribunal had made an erroneous decision in his case. 12 It may be that a person can feel a sense of grievance because an administrative or even judicial decision is made against him or her when the decision-maker forms a view about the credibility of the claim or the person whose case it is. However, that does not provide a basis upon which repeated applications can be made to the courts or administrative bodies on the same issue where their function is to determine once and for all the matter which the statute under which they operate requires them to consider. Here, the scheme of the Migration Act 1958 is clear in providing a structured process for the review of determinations as to entitlement to obtain, among others, protection visas. 13 If the minister or his or her delegate determines that a person is not entitled to a protection visa, a merits review of that decision is given to the applicant for that visa in the Refugee Review Tribunal. An exhaustive framework is established under the Act in which such a review can take place. Once the tribunal makes a decision on the review, the Act provides that it is taken to be the decision of the Minister. There is no opportunity under the Act for a person, who has had such an application refused by the tribunal, to apply a second time to the tribunal where the decision had been made on the merits or for the tribunal to reconsider the earlier decision. 14 In this case, the applicant's claim for a protection visa was considered and determined adversely to him by the tribunal in 2000. Whether the applicant is right or wrong about his factual assertions concerning the findings of the tribunal in respect of his claim is not a matter for the court. Wilcox J explained that in 2005, and I have sought to do that again today. 15 There is a public interest in finality of litigation and in the authority of the court to determine controversies and quell them. The controversy which the applicant seeks to raise in these proceedings has been quelled by the previous litigation in which he unsuccessfully sought to challenge the 2000 decision. 16 The Court must be able to protect itself from the use of its processes by persons who refuse to accept the finality of its decisions, however much they may feel a sense of grievance about the decision(s). The orderly functioning of society could not occur if persons were entitled to treat decisions of courts as being decisions which they could ignore. The court is an essential part of the function of government which establishes finally and authoritatively legal rights of persons in respect of matters upon which the court adjudicates. In my opinion, the proceedings before the Federal Magistrates Court which were dismissed by Scarlett FM were an abuse of the process of the court: see SZEHN v Minister for Immigration and Citizenship [2007] FCA 1451, which I delivered today; see also Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at 264-265 [6]-[9]; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 16-18 [31]-[36] per Gleeson CJ, Gummow, Hayne and Heydon JJ. 17 The applicant had no basis for bringing the application for leave to appeal other than to seek to ventilate once more his claimed entitlement to be granted a protection visa on its merits. The fact that he does not accept the decision of the tribunal is a matter for him, but he cannot vexatiously continue applying to the Courts to entertain proceedings which could not possibly be decided in his favour. 18 I am of opinion that the application should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.