SZEOX 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: SZEOX v Minister for Immigration [2007] FMCA 968. When the matter was called on this morning, the applicant said that he had been sick for the previous two weeks with high blood pressure, and had had some problem, which he did not further articulate, concerning his family in Bangladesh. I asked him what basis he had to assert that there was any error in the decision of Scarlett FM dismissing his application for constitutional writ relief in respect of a decision of the Refugee Review Tribunal that it had no jurisdiction to commence a second review of the matter which was given on 4 April 2007. The applicant gave no meaningful response. 2 The litigious history of the applicant's claims commenced when he sought constitutional writ relief in the Federal Magistrates Court in respect of a previous decision of the tribunal made on 25 August 2004 and handed down on 21 September 2004. It affirmed a decision of the delegate of the first respondent made on 3 May 2001 to refuse the grant of a protection visa to the applicant. (He had made an earlier application which had been granted by consent, and the matter had been further considered by the tribunal, differently constituted.) Lloyd-Jones FM dismissed his application for constitutional writ relief in respect of the decision of the tribunal made on 25 August 2004, saying that he had been unable to identify any ground that the tribunal had committed a jurisdictional error: SZEOX v Minister for Immigration [2005] FMCA 1803 at [42]. In doing so, his Honour noted that the tribunal had made a number of findings adverse to the applicant in respect of his credibility and he had failed to particularise any basis upon which the tribunal had made any error. 3 Conti J dismissed an appeal from that decision: SZEOX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 672. Initially, the applicant had been represented by counsel before Conti J, but counsel withdrew from the proceedings. His Honour noted that there was no basis on which Lloyd-Jones FM had erred in dismissing the claim that the tribunal had been biased or made its decision in bad faith. Conti J concluded that the applicant's submission comprised simply an assertion, in effect, that the tribunal's decision was erroneous and that it should be returned to the tribunal for a fresh hearing. His Honour concluded, and I agree, that it was inevitable that orders should be made that the appeal be dismissed. 4 The applicant then applied for special leave to appeal to the High Court, which dismissed the application on 31 January 2007: SZEOX v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCATrans 11. Kirby and Callinan JJ said that the order of Conti J dismissing the appeal was not attended by doubt, and that the applicant would have enjoyed no prospects of success in the High Court. 5 On 21 February 2007, the applicant lodged a further application with the Refugee Review Tribunal. The tribunal dismissed that application on 4 April 2007, holding that it did not have jurisdiction in the matter because it had already discharged its function to review the delegate's decision of 3 May 2001 and its decision of 25 August 2004 had survived the applicant's judicial challenges, which I have set out above. 6 The applicant then applied to the Federal Magistrates Court asserting that the 2007 decision of the tribunal failed to accord him natural justice, made an error of law amounting to jurisdictional error by identifying the wrong issue, failed to exercise its jurisdiction under the Act, and acted in excess of its jurisdiction. Scarlett FM dismissed that application: SZEOX v Minister for Immigration [2007] FMCA 968. He found that the application for a second review by the tribunal of the delegate's decision was an application entirely without merit or justification: SZEOX [2007] FMCA 968 at [9]. He said: 'It is an abuse of the Court's process. It is clear that these repeated proceedings have been commenced for an ulterior motive, namely to provide some sort of a foundation, however spurious, for the issue or continuation of a bridging visa.' 7 Whether that was the motive or not, I do not need to determine, because, in my opinion, the proceedings are plainly an abuse of the process of the Court for the reasons that I gave in SZEHN v Minister for Immigration and Citizenship [2007] FCA 1451 today. The applicant seeks now to relitigate the issue of validity of the 2004 decision of the tribunal, under colour of an attempt to challenge the tribunal's undoubtedly correct determination that it had already discharged its function of review. That is a proceeding that is foredoomed to fail. It is plainly an abuse of the process of the Court. 8 I am of opinion that I should dismiss the application with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.