FEDERAL COURT OF AUSTRALIA

SZFRF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1171

SZFRF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1053 OF 2005

HILL J

2 AUGUST 2005

SYDNEY

THE COURT ORDERS THAT:

REASONS FOR JUDGMENT

(Ex tempore – revised)

HILL J

1                     Before the Court is an application for leave to appeal against a decision of a Federal Magistrate summarily dismissing an application by the applicant for judicial review of a decision of the Refugee Review Tribunal, given on 30 April 2002.

2                     The chronology in the present matter is not one which encourages respect for justice.  It seems that the applicant, who is a citizen of India, arrived in Australia in January 2000, some five-and-a-half years ago.  He applied for a protection visa.  That application was refused by a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), and the appellant then applied to the Refugee Review Tribunal to review that decision.

3                     On 30 April 2002 the Tribunal, now joined as a respondent in the present proceedings, rejected the applicant’s application and confirmed the decision of the delegate.  The applicant, on 3 May 2002, applied to this Court to review the Tribunal's decision.

4                     The matter was transferred from this Court to the Federal Magistrates Court and heard by Driver FM, who, on 1 August 2002, dismissed the application on the grounds that there was no jurisdictional error which infected the decision of the Tribunal.

5                     The applicant, on 21 August 2002, filed a notice of appeal in this court.  That appeal was dismissed by Moore J on 6 December 2002.  The applicant then applied for special leave to appeal in the High Court of Australia. 

6                     That special leave to appeal application was deemed to be abandoned in June 2003 but the applicant made a second application for leave to appeal in the High Court in July 2003.  That second application was, in January 2004, again deemed abandoned, and the appellant made a third application on 13 February 2004.  That third application was ultimately discontinued in January 2005.

7                     The applicant then filed an application afresh to review the Tribunal's decision in the Federal Magistrates Court.  That second application was ultimately dismissed summarily by Barnes FM in a judgment dated 28 June 2005.

8                     It is unnecessary for me here to summarise in detail the matters dealt with by her Honour.  Essentially, it suffices to say that her Honour took the view that the issues raised by the applicant, if not phrased in identical terms, were in effect the same issues as had been raised years before in the proceedings before Driver FM.

9                     She formed the view that the proceedings were barred on the basis that there had been a res judicata or, to the extent that essentially some of the same issues were involved or should properly have been raised in the original proceeding, that there was an Anshun estoppel.

10                  Finally, her Honour expressed the view that even if she were not correct on those two matters, the attempt to re-litigate the same claims for relief on the basis of jurisdictional error by the Tribunal was an abuse of process (see Walton v Gardiner (1993) 177 CLR 378, per Mason CJ Deane and Dawson J, and to the same effect, the decision in Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306, per Wilcox J).

11                  Her Honour noted that there was no arguable basis for any of the grounds of review, in any event, sought to be made.  She dismissed the application accordingly and made an order as to costs.

12                  The applicant for leave prepared a lengthy submission, in effect raising matters that had already been dealt with in the Tribunal.  When asked to explain why the decision of the learned Federal Magistrate was wrong, the applicant said that he had been unable to obtain a good barrister, that he had sought from the Magistrate time to get documents from India (which would be, no doubt, relevant to any new application that may be made to the Tribunal but not to any application before the Federal Magistrate) and that the Federal Magistrate had declined to give that time.

13                  The applicant noted that his English language skills were poor and without language skills, he was unable to do much.  He said that his case was not investigated at all by the Tribunal, which had just made an ex parte decision, notwithstanding that, obviously, he was given the opportunity say whatever he wished to say before the Tribunal, and certainly there is no evidence that suggests to the contrary.

14                  The applicant requested that I send back the case to the Tribunal, whether or not the Federal Magistrate was wrong, on grounds of compassion. 

15                  To the extent that the present proceedings are interlocutory and that leave to appeal is required, it can be said that it is necessary that the applicant show whether the decision of the learned Federal Magistrate was attended with sufficient doubt as to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397; Caterpillar Inc. v John Deere Limited (1999) 48 IPR 1. 

16                  As the representative of the Minister has pointed out, in NACA v  Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659, Hely J at [12] said:

“In my view, the decision to which the Federal Magistrate came was the correct decision in all the circumstances.  It was incumbent upon the appellant to show that if he wanted the Federal Magistrate to reopen the case, that there was some purpose in doing so.  In other words, he had to show an arguable case that the RRTs decision should be quashed on the grounds of jurisdictional error.  The appellant did not do so.”

17                  Those words are somewhat apt in the present case. 

18                  Certainly, I am not at all satisfied that the decision of the learned Federal Magistrate was attended of any doubt, whatever arguments there may be on issues of res judicata and Anshun estoppel (and I am not suggesting that there are any), the application before the learned Federal Magistrate was clearly an abuse of process.  There is a time when litigation must come to an end. 

19                  This is particularly so when there is nothing in the submissions which the applicant has put before me which indicates error and that all the applicant is seeking to do is to once again reargue the same matters, albeit in somewhat slightly different language.

20                  It seems to me that it is appropriate that an order be made to stop the applicant from continuing this course of conduct.  In the circumstances, I propose to make the following orders:  first, that the applicant for leave/appellant be restrained from commencing any further application for judicial review under section 39B of the Judiciary Act in respect of the decision of the Refugee Review Tribunal given on 30 April 2002, without leave of the court, and whether in this court or in the Federal Magistrates Court; second, that no application for judicial review of that decision be accepted for filing in this court, except by leave of a judge of this court; and third, that the applicant for leave / the appellant pay the costs of the respondent Minister on an indemnity basis.

Associate:

Dated:              23 August 2005