FEDERAL COURT OF AUSTRALIA

SZHQC v Minister for Immigration and Citizenship [2008] FCA 1968

Federal Magistrates Court Rules 2001 (Cth) r 13.10(a)

Migration Act 1958 (Cth) s 424A

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited

Metwally v University of Wollongong (1985) 60 ALR 68 considered

Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 considered

SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 cited

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 considered

SZHQC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1862 of 2008

BENNETT J

15 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the first respondent’s costs in the amount of $1100.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

introduction

1                     The applicant is a citizen of India.  He seeks leave to appeal from a decision of the Federal Magistrates Court in which Barnes FM dismissed his application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (SZHQC v Minister for Immigration [2008] FMCA 1604).  The Tribunal decision affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant.

2                     Federal Magistrate Barnes gave a number of reasons for dismissing the application for review.  The first was that the Tribunal decision the subject of the application had already been considered by the Federal Magistrates Court (SZHQC v Minister for Immigration [2006] FMCA 1590) and a judge of this Court (SZHQC v Minister for Immigration and Citizenship [2007] FCA 305) and had been the subject of an application for special leave to the High Court (SZHQC v Minister for Immigration and Citizenship [2007] HCATrans 735). 

Previous proceedings

3                     The Tribunal did not believe the applicant’s claimed reason for persecution being that he was a Muslim who had married a Hindu woman. 

4                     Federal Magistrate Turner found that ‘the Tribunal did not act on evidence that was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable’ and dismissed the application for review (SZHQC v Minister for Immigration [2006] FMCA 1590 at [41] and [43]).

5                     Justice Downes in SZHQC v Minister for Immigration and Citizenship [2007] FCA 305 noted that the Tribunal did not accept the applicant’s claimed reason for persecution.  His Honour considered the 13 grounds of appeal raised in relation to the Tribunal decision and rejected each of those grounds, finding them all to be unfounded.  In referring to the ground that dealt with the use by the Tribunal of country information, his Honour concluded that the Tribunal was entitled to rely on such information even without disclosure, as it fell within s 424A(3) of the Migration Act 1958 (Cth) (‘the Act’).  Further, Downes J said that his reading of the decision of the Tribunal did not reveal any potential error of law not raised by the applicant and his Honour saw no error in the decision of Turner FM to dismiss the application for review.

6                     Justice Heydon, on the application for special leave, said that any appeal would have no prospects of success. 

The second application to the Federal Magistrates Court

7                     The applicant reapplied to the Federal Magistrates Court for a review of the Tribunal’s decision.  Federal Magistrate Barnes was satisfied (at [18]) that the application was, in effect, an attempt to reagitate the same issues that had been dealt with in past judicial review proceedings.  For that reason, Barnes FM concluded that the application should be dismissed pursuant to rule 13.10(a).  Her Honour also concluded that the proceedings were barred by the operation of the doctrine of Anshun estoppel (see Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589).  Any further arguments, including an argument based upon the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, could, her Honour pointed out, have been raised in prior proceedings.

8                     As I pointed out in SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 at [12], the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 applied Anshun in the context of judicial review of administrative action and said at [37] that where an issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties.  Further, in Metwally v University of Wollongong (1985) 60 ALR 68, the High Court stated at [7] that:

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, either deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. 

9                     There is no reason why an argument based upon SAAP should be reconsidered, even if it were to apply.  In any event, I note that Downes J did consider the application of s 424A of the Act in the context of the use of country information.

the current application

10                  The applicant appears in person, assisted by an interpreter.  The only grounds set forth in the application, in an affidavit accompanying the application for leave to appeal, seem to assert that Barnes FM did not consider the applicant’s application, apparently because her Honour dealt with it by delivering an ex tempore judgment.  Her Honour gave full reasons for her decision and I see no basis for any complaint in that regard. 

11                  In the affidavit accompanying the application for leave to appeal and also before me, the applicant referred to the recent terrorist attacks in Mumbai and said that they make it more difficult for him to go back to India. 

12                  The matters raised in the applicant’s affidavit are not relevant to the decision of the Tribunal the subject of consideration before me and the subject of the decision of Barnes FM.  I note that they are also not consistent with his claimed fear of persecution as made to the Tribunal. 

13                  The applicant has not identified any error on the part of the Federal Magistrate in dismissing his application on the basis that it had no reasonable prospects of success.  The grounds contained in the affidavit accompanying the application for leave to appeal are misconceived and no arguable basis has been advanced upon which an appeal might succeed.  The applicant has not satisfied the test in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 to warrant a grant of leave to appeal.  The decision is not attended with sufficient doubt to warrant its reconsideration.

conclusion

14                  The applicant has failed to show that Barnes FM erred in the exercise of her discretion.  In the light of the applicant’s extensive litigation history, I am satisfied that no substantial injustice would result if leave were refused, even supposing her Honour’s decision to be wrong.  The application for leave to appeal should be dismissed with costs.

Associate:

Dated:         23 December 2008