FEDERAL COURT OF AUSTRALIA

SZFIR v Minister for Immigration and Citizenship

[2008] FCA 885

SZFIR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 526 of 2008

RARES J

8 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal is dismissed.

2.                  The applicant pay the first respondent’s costs.

3.                  The applicant file no further proceedings in this Court in respect of reviewing the decision of the second respondent handed down on 14 March 2006, whether directly challenging that decision or seeking to challenge an order of the Federal Magistrates Court in respect of that decision without the leave of a judge.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an application for leave to appeal from a decision of the Federal Magistrates Court (dated 25 March 2008) dismissing as incompetent and an abuse of process, a second application for constitutional writ relief made by the applicant in respect of a decision of the Refugee Review Tribunal:  SZFIR v Minister for Immigration [2008] FMCA 365.

2                     The tribunal had affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa in its decision, signed on 21 February 2006 and handed down on 14 March 2006.  Among other things, the tribunal found that it did not accept the evidence of the applicant.  He sought constitutional writ relief from the Federal Magistrates Court later that year and his application was dismissed by that court:  SZFIR v Minister for Immigration [2006] FMCA 1451.  An appeal to this Court was dismissed last year:  SZFIR v Minister for Immigration and Citizenship [2007] FCA 424.  On 7 February this year, Hayne and Crennan JJ refused the applicant’s application for special leave to appeal to the High Court of Australia saying that:  “None of the arguments advanced, whether in this Court or in the courts below, would enjoy prospects of success sufficient to warrant a grant of special leave”:  SZFIR v Minister for Immigration and Citizenship [2008] HCA Trans 63.

3                     On 3 March 2008, the applicant filed a further application in the Federal Magistrates Court, in effect repeating his previous application for relief in that court, which had been the subject of the proceedings I have just mentioned. 

4                     On 25 March 2008, the Federal Magistrates Court dismissed the new application as incompetent, and ordered that no further application to review the decision of the tribunal be made without the leave of a Federal Magistrate.  The applicant has sought leave to appeal from that judgment.  His Honour said that the issues had been dealt with previously and disposed of adversely to the applicant.  He found that the applicant had been unsuccessful in his appeal to this court and in seeking special leave to appeal to the High Court.  He said that it was clear that there was no reasonable prospect of successfully prosecuting the present application, and that by returning it to court and seeking to re-agitate a matter that had already been dealt with, the applicant was engaging in frivolous and vexatious conduct.  In my opinion, his Honour was correct in that finding. 

5                     In his affidavit in support of the application for leave to appeal, the applicant asserted that the tribunal had made its decision without considering his fear of persecution because of his political belief.  He referred to the fact that he was suffering a depressive illness and that he had been a political activist for the Awami League in Chittagong.  He claimed that he had been assaulted because of his political profile in Bangladesh and that his life was still at risk, that the tribunal failed to consider his state mind at the time of its interview, and he had not been given the opportunity to reply to any adverse information against his claims by the tribunal either in written submission or further interview.

6                     The draft notice of appeal simply seeks to re-agitate, in essence, the matters already determined in litigation that has been concluded adversely to the applicant. 

7                     In my opinion, the application before me is itself an abuse of the process of this court.  It has no prospect of success.  It is contrary to the scheme of the Act to treat the decision of the tribunal as provisional in nature.  Once the court has exercised its judicial power to determine an application to review the tribunal’s decision, the circumstances for revisiting the original decision of the tribunal in subsequent litigation would be very limited indeed.  This is not a case in which any such claim arises.

8                     In this case, the application has no merits and it is therefore doomed to fail for the reasons that I gave in SZEHN v Minister for Immigration and Citizenship [2007] FCA 1451 at [13]-[14].  For these reasons in my opinion the application should be dismissed.

Associate:

Dated:         12 June 2008