SZFYM v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a judgment of a Federal Magistrate given on 11 May 2005. The Magistrate 'summarily dismissed as incompetent' an application for judicial review of a decision of the Refugee Review Tribunal ('RRT') handed down on 16 July 2002. The RRT affirmed a decision of a delegate of the respondent ('the Minister') not to grant protection visas to the applicants. 2 The applicants are father and son. The father (to whom I shall refer as 'the applicant') claimed to fear persecution on religious grounds in Bangladesh. He arrived in Australia on 7 December 1996. The applicant's wife, who made a separate application for a protection visa, arrived in Australia in November 1999. Their son was born in December 2000. 3 In addition to dismissing the application for judicial review, the Magistrate directed that the applicant was not to institute any further proceedings in the Federal Magistrates Court seeking review of the RRT's decision without first obtaining the leave of the Court. This order was made because of what the Magistrate described as the 'long and tortuous history of litigation' instigated by the applicant in his unsuccessful attempts to challenge the decision of the RRT. 4 The draft notice of appeal attached to the affidavit filed in support of the application for leave to appeal is in a standard form frequently seen in this Court. It does not specify with any precision any error of law committed by the Magistrate or, for that matter, the RRT. 5 It is necessary to describe only briefly the background to the present application. The applicant applied for a protection visa in December 1996. That application was rejected both by the delegate and the RRT. 6 On 8 May 2001, in circumstances that are not altogether clear, the applicant lodged a further application for a protection visa. This application was refused and the applicant applied to the RRT for review. A differently constituted RRT handed down its decision on 10 July 2002. It again affirmed the decision of the delegate not to grant the applicant a protection visa. An application for judicial review was dismissed by the Magistrates Court on 6 December 2002. The applicant was represented by counsel on that application. 7 An appeal from the decision of the Magistrates Court was dismissed by Hill J on 27 August 2003. Again the applicants were represented by counsel on the appeal. 8 The applicant applied for special leave to appeal in the High Court, but on 29 April 2004 that application was deemed to be abandoned. A second application was filed for special leave to appeal, but was dismissed on 3 March 2005 by McHugh and Heydon JJ. 9 On 23 March 2005, the applicant filed a fresh application in the Magistrates Court seeking review of the RRT's decision handed down on 18 June 2002. As noted, that application was dismissed by the Magistrates Court on 11 May 2005. 10 The applicant claimed to be a Bangladeshi Hindu. He claimed to fear persecution in Bangladesh on the ground of his religion. In particular, he claimed that he had been mistreated by Muslims in Bangladesh and that he would be at risk of serious harm if he were to return to that country. 11 The RRT found that the applicant's evidence in relation to almost all aspects of his claim 'had no credibility or veracity'. It concluded that the documents produced by the applicant to support his claim of Bangladeshi citizenship were not genuine. The RRT found that the applicant was not in fact a Bangladeshi national, but an Indian citizen. It therefore rejected his claim to fear persecution in Bangladesh and found that he was not at risk of persecution if he were to return to India, his country of nationality. 12 In his judgment delivered on 6 December 2002, Federal Magistrate Driver rejected submissions founded on alleged breaches of s 424A of the Migration Act 1958 (Cth) ('Migration Act') and the apprehended bias of the RRT. His Honour concluded that there had been no jurisdictional error. On the appeal, which was decided after the High Court delivered judgment in Plaintiff s157/2002 v Commonwealth (2003) 211 CLR 476, Hill J rejected similar arguments made on the applicant's behalf. His Honour also rejected contentions that the applicant had been denied procedural fairness by the RRT in relation to the documents found not to have been genuine. 13 In dismissing the applicant's application for special leave to appeal to the High Court, McHugh and Heydon JJ said this: 'The Federal Magistrates Court refused an application for judicial review: it found no jurisdictional error and no procedural unfairness. Hill J, in the Federal Court, dismissed an appeal. His Honour held that the principle in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 did not apply because the evidence did not support its application. He also held that no procedural unfairness or jurisdictional error was established. An application for special leave to appeal was deemed abandoned on 29 April 2004. The present application was filed about 8 months late. The application relies on the Muin principle. That must fail for the reasons given by Hill J. No other ground of jurisdictional error is made out.' 14 In the judgment delivered on 11 May 2005, the Magistrate observed that, in essence, the applicant's submissions merely repeated some of the factual issues concerning his claims and complained of the consideration of those claims by the RRT. His Honour stated that he was 'strictly bound' by the decision of the Federal Court and the High Court. Since no jurisdictional error could be identified, the RRT's decision was a 'privative clause decision' and the application for judicial review had been made outside the 28 day period specified in s 477(1A) of the Migration Act. Thus the application was incompetent. 15 His Honour also expressed the view that it was time the litigation was brought to an end. He said that he could see no good purpose in allowing the applicant to commence further proceedings in the Court. 16 The application for leave to appeal has been brought on the basis that the orders made by the Magistrate were interlocutory. This appears to be correct, as the order dismissing the proceedings did not finally dispose of the substantive rights of the parties: Cubillo v Commonwealth ( 2001) 183 ALR 249, at [182] (and authorities cited there). 17 The Magistrate did not explain precisely what he meant by the statement that he was 'strictly bound' by the decision of the Federal Court and the High Court. Independently of the precedential value of the decision of the Federal Court, the first decision of the Magistrates Court, affirmed on appeal, created a res judicata between the applicant and the Minister. Since the applicant did not seek to raise any fresh ground in the second application for judicial review, he was precluded from bringing those proceedings. They therefore constituted an abuse of the process of the Court. 18 In any event, the applicant did not put forward any ground to the Magistrate suggesting that the RRT had committed a jurisdictional error. Nor has any such ground been put forward in support of the application for leave to appeal. The written submissions filed on behalf of the applicant, insofar as they have any relevance to the present case, do not add anything of substance to the arguments addressed in the earlier decisions. The applicant's oral submissions raised only factual issues. 19 In these circumstances, the decision of the Magistrate is not attended by sufficient doubt to warrant reconsideration. The application for leave to appeal should therefore be refused with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.