SZJBW v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The applicant has applied for leave to appeal from a consent order made by Emmett FM on 14 May 2008 dismissing his proceedings commenced in the Federal Magistrates Court on 21 April 2008. Her Honour's order noted that the decision of the Refugee Review Tribunal dated 19 June 2006, which was the subject of those proceedings, had already been the subject of judicial review on prior occasions by that court, this court, and the High Court of Australia and had been found to be a privative clause decision. 2 The application for leave to appeal is supported by an affidavit in a standard form which asserts that her Honour made a mistake in deciding that the new case which he sought to bring in the Federal Magistrates Court was not arguable. It also asserted in a paragraph (that I have seen in identical form brought by other applicants) that, after becoming aware of the outcome of the decision of the Federal Magistrates Court, the applicant became: '… mentally distressed and upset that I couldn't take any initiative about my case and didn't know what steps I should take. I believe that I have an arguable case.' 3 The draft notice of appeal does not identify any relevant legal basis on which an appeal could be allowed and, among other things, seeks an order that the decision of the delegate of the Minister be quashed so as to "… allow [the] applicant to stay here in Australia permanently". It is patent that these proceedings are an abuse of the process of the court and have no prospect of ever being successfully prosecuted. 4 Emmett FM had heard the applicant's previous proceedings for judicial review of the decision of the tribunal and dismissed them on their merits: SZJBW v Minister for Immigration [2007] FMCA 125. Her Honour noted on that occasion, that the applicant had made no meaningful submissions in support of any grounds save to say that he was still in danger if he were to return to Pakistan, his family was still having problems, and the police would continue to follow him: SZJBW [2007] FMCA 125 at [31]. The applicant made a similar submission to me today. After carefully reviewing the applicant's grounds, her Honour dismissed them. 5 Buchanan J dismissed an appeal to this court: SZJBW v Minister for Immigration and Citizenship [2007] FCA 916 at [9] saying that the tribunal had systematically rejected the applicant's claims and found that he had been untruthful and had invented his claims to assist his application. He noted that it was not the function of the Federal Magistrates Court or this court to make an assessment on the merits of claims of visas and said no error had been identified in the judgment of Emmett FM and no jurisdictional error had been shown to him on appeal in respect of the decision of the tribunal. 6 On 27 March 2008, Kirby and Heydon JJ dismissed an application for special leave to appeal to the High Court of Australia: SZJBW v Minister for Immigration and Citizenship [2008] HCASL 32. They said that the papers filed by the applicant in support of his application there did not face up to the reasoning in the courts below, had a standard form character and contained many irrelevancies. They added that nothing in those papers suggested any point on which, if special leave were granted, an appeal would have prospects of success. 7 There is nothing in the material provided to this court by the applicant to suggest that the proceedings brought before the Federal Magistrates Court on 21 April 2008 had any legitimate forensic basis. 8 Moreover, the applicant has asserted no basis on which to bring an application to set aside the orders which were made by consent by her Honour on 14 May 2008. A consent order is a contract between parties. It can be set aside as any other contract can be on ordinary principles of common law or equity and also in other exceptional circumstances: see Paino v Hofbauer (1988) 13 NSWLR 193 at 198C-F per McHugh JA (Samuels JA agreeing), 200B-F per Clarke JA; Harvey v Phillips (1956) 95 CLR 235 at 243-244 per Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ; The Food Improvers Pty Limited v BGR Corporation Pty Limited (No 4) [2007] FCA 220; 25 ACLC 177 at [13] per myself. 9 In my opinion, these proceedings are an abuse of the process of the Court on their face and are frivolous and vexatious. They should be dismissed. I am satisfied that I should make a fixed costs order on the basis of the material set out in the affidavit of Ms Kantaria. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.