SZEHN 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 the Federal Magistrates Court: SZEHN v Minister for Immigration [2007] FMCA 840. The applicant had sought review in that court of a decision of the Refugee Review Tribunal made on 28 September 2006 in which the tribunal decided that it did not have jurisdiction to determine the applicant's claim because it had already made a decision on his original application for review of the Minister's decision to refuse him a protection visa. 2 The applicant arrived in Australia in 1996 and applied for a visa on 1 April in that year, claiming to have been persecuted by Islamic fundamentalists on the ground of his religious opinion and his marriage to a Hindu woman. He also claimed that he was persecuted on the basis of his political opinion through his involvement with a political party and his expression of his political views. 3 The applicant originally applied to review the decision of the Minister's delegate to refuse him a protection visa in the High Court of Australia, which granted his application and remitted it for determination by the Minister in accordance with law. 4 On 1 October 2002, a delegate of the Minister refused that application for a protection visa, and later that month the applicant lodged an application for review in the tribunal. The hearing occurred in early 2004, and on 14 July 2004, the tribunal affirmed the decision of the Minister's delegate to refuse the applicant a protection visa, which decision was handed down on 4 August 2004. 5 The applicant sought constitutional writ relief from the Federal Magistrates Court in respect of the tribunal's decision. Mowbray FM refused the application: SZEHN v Minister for Immigration [2005] FMCA 531. He noted that the tribunal had found the applicant's evidence to be less than satisfactory and had made adverse credibility findings against him, including findings that some of his claims had been fabricated. The tribunal found that the applicant had not suffered any harm in relation to his opposition to Islamic fundamentalism in Bangladesh since the 1980s, and that the harm that he had suffered at that time was not serious enough to amount to persecution for a Convention reason. The tribunal found it was not satisfied as to his other claims and rejected his application. His Honour characterised the application then before him as essentially a request to the court to engage in merits review or to revisit the facts as found by the tribunal and that there was no reviewable legal error disclosed in the application: SZEHN [2005] FMCA 531 at [33]-[35]. 6 The applicant appealed to this court, and that appeal was dismissed by Lindgren J: SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389. Before his Honour, the ground of appeal that was substantially pressed, as identified by him, was that the tribunal had failed to have regard to relevant material, being references supporting the applicant's claim to have married a Hindu woman and as to the consequences of such a marriage in Bangladesh. Before his Honour the applicant was represented by counsel. His Honour concluded that that ground of appeal was not made out, particularly in view of the tribunal's conclusion that the applicant was not a credible or reliable witness: see SZEHN [2005] FCA 1389 at [60], [69]. Accordingly, his Honour dismissed the appeal. 7 The applicant then applied to the High Court of Australia for special leave to appeal. That application was dismissed on 12 April 2006 by Gummow and Heydon JJ: SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 190. They said that there would be insufficient prospects of success on any appeal to that court from the Federal Court to warrant a grant of special leave, and accordingly dismissed the application. 8 It is against that background that the applicant then applied a second time to the Refugee Review Tribunal on 28 April 2006 for a review of the delegate's decision. He made a submission to the tribunal, which it set out in its statement of decision and reasons, addressing the issue as to the power of the tribunal to rehear his application despite, among other things, the fact that the 28-day period prescribed under s 412(1)(b) and reg 4.312(b) from the time the delegate made the decision had been exceeded. The applicant said: 'I also acknowledge that the Tribunal has already completed a review of the Minister's delegate decision. However, I want to say that my present situation in Bangladesh becomes more risk for me. If I force to return to Bangladesh the possibility of my persecution is stronger than the past.' The tribunal ruled that it had already discharged its function and was precluded from considering the matter again. 9 The applicant applied to the Federal Magistrates Court for constitutional writ relief in respect of the latter decision. Smith FM dismissed the claim: SZEHN [2007] FMCA 840. He said that there was no arguable case that had been raised before him as to why the decision of the tribunal that it had no jurisdiction could be challenged. He said that the applicant had no argument to present to show that the tribunal had jurisdiction and that the tribunal's decision was undoubtedly correct for the reasons it gave. 10 Another basis on which his Honour could have decided the matter adversely to the applicant, but did not, was that the applicant's application to the Federal Magistrates Court was barred by the operation of s 477 of the Migration Act 1958 (Cth). It plainly was. That section required any application for a remedy sought from that court in respect of the 2006 tribunal decision to be made within a maximum of 84 days of its actual notification. The second tribunal's decision was received by the applicant, on the admission his Honour recorded in his judgment (SZEHN [2007] FMCA 840 at [4]), on 4 October 2006, but the proceedings in the Federal Magistrates Court were only commenced on 21 March 2007. That was a greater period of delay than the 84 days allowed under s 477. 11 Following his Honour's decision, the applicant filed an application for leave to appeal in this court on 7 June 2007. His affidavit in support asserted simply that the Federal Magistrates Court failed to find error of law in the tribunal decision, 'in fact which was full of error,' and that his Honour ought to have found that the tribunal did not follow procedures according to law, and ought to have found he had been denied natural justice. The draft grounds of appeal are of an equally spurious nature, merely making bald assertions with no particularisation. 12 The applicant had a full opportunity to present his claim for a protection visa to the tribunal in the hearing which occurred in 2004. Once the tribunal decided that review, it had fulfilled its function under the Act and was incapable of revisiting it unless its decision was set aside by a court. 13 This application has no merits at all. It is a plain abuse of the process of the court, as was the proceeding before Smith FM. In Walton v Gardiner (1993) 177 CLR 378 at 392-393, Mason CJ, Deane and Dawson JJ described the power of a superior court to stay proceedings on the ground of abuse of process. Among other things, they said that proceedings which could clearly be seen to be foredoomed to fail constituted an abuse of process. Moreover, even where proceedings do not give rise to an estoppel, if their continuance could be seen to be unjustifiably vexatious and oppressive for the reason that they sought to litigate anew a case which has already been disposed of by earlier proceedings, they are an abuse of process. 14 Their Honours referred to the well known dictum of Lord Diplock in Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536, that there was an inherent power which any court of justice must possess to prevent 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 in litigation before it or would otherwise bring the administration of justice into disrepute among right thinking people. 15 Before me, the applicant complained that he had only been given notice of this hearing by letter dated 27 August 2007 from the court, and had only had since he received the letter, on the night of 28 August, to prepare. He said that he had all day yesterday to think about his case. I asked him why his case was reviewable. He said that he needed more time to put in a submission. I asked him why, having regard to the litigious history which I have set out above, he was entitled to ask the tribunal to look at his case a second time. He informed me that he had submitted to the tribunal documents, including photographs and videos, but the tribunal had not believed him, and that the tribunal would believe him if it decided his case properly, and therefore it should review his case again. 16 There are no prospects of success whatsoever of any appeal which the appellant seeks to bring in this court. As Heydon J found in refusing an application in SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 352, after a delegate's decision had been reviewed on the merits by the tribunal, it was the tribunal's decision which was the operative decision and was relevantly determinative of the then applicant's present immigration status as a person who was not entitled to a protection visa. The tribunal had no power under the Act to revisit that determination after it had had a hearing on the merits of the application for review and had made a decision that the application should be refused. 17 In my opinion, this matter is nothing less than a clear abuse of the process of the court and should be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.