FEDERAL COURT OF AUSTRALIA

SZOZD v Minister for Immigration and Citizenship [2012] FCA 821

THE COURT ORDERS THAT:

1.    The orders and directions made by the Court on 27 July 2012 be vacated.

2.    The Application for an Extension of Time and Leave to Appeal filed on 25 July 2012 be dismissed.

3.    The applicant pay the first respondent’s costs of and incidental to that Application on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 25 July 2012, the applicant applied to this Court for an extension of time in order to enable him to seek leave to appeal and, if the extension is granted, for leave to appeal from a declaration and orders made by a Federal Magistrate on 7 June 2012 and entered on 15 June 2012. That declaration and those orders were in the following terms:

THE COURT ORDERS THAT:

1.    The Court notes that the decision of the Refugee Review Tribunal the subject of the purported show cause application filed on 11 May 2012 has previously been dealt with by this Court (SZOZD v Minister for Immigration & Anor [2011] FMCA 382) and on appeal by the Federal Court (SZOZD v Minister for Immigration [2011] FCA 946) and that special leave to appeal to the High Court has been refused (SZOZD v Minister for Immigration & Anor [2011] HCASL 207).

2.    The Court declares that, in the circumstances, the purported show cause application filed on 11 May 2012 is an abuse of process.

3.    The Court notes that the purported application and supporting affidavit were not served upon the Minister’s Department in accordance with usual procedures.

4.    The purported application is dismissed, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

5.    There be no order as to costs.

6.    The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post to his residential address nominated in the purported application and any other address for the applicant known to the Minister’s Department.

2    Under the Federal Court Rules 2011 (r 35.13), the applicant’s Application for Leave to Appeal was required to be filed by 21 June 2012. His application is, therefore, 34 days out of time.

3    Leave to appeal is required because the applicant’s application in the Federal Magistrates Court was summarily dismissed pursuant to r 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (see s 24(1)(d) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth)). That rule provides that a proceeding may be dismissed generally if the Court is satisfied that the proceeding is an abuse of the process of the Court.

4    The applicant stipulated in his application in this Court that he wished his application to be determined without an oral hearing. I am, therefore, dealing with the matter on the papers.

5    By his most recent application in the Federal Magistrates Court, the applicant sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 January 2011 (RRT Case No 1010001) as well as relief by way of the constitutional writs against the first respondent and the Independent Protection Assessment Reviewer who assessed his case. The gravamen of his most recent application is captured by the following paragraphs which appear in his Application immediately after his claims for relief:

…

2.    The applicant is revoking [sic] the jurisdiction of this court to re-assess the application for judicial Review as the applicants [sic] first application for review was not properly looked in to [sic] by the honourable court of federal magistrate [sic] court of Australia.

3.    That the applicants [sic] previous application was not dealt [sic] in accordance with the law.

6    The applicant then set out seven grounds in support of his application for judicial review. These grounds effectively re-hash his earlier application for judicial review in the Federal Magistrates Court.

7    In his recent application in the Federal Magistrates Court, the applicant then said that he should be granted an extension of time because (inter alia) he had “… failed to raise the points of the real issue to be determined [sic]”. In the affidavit which he swore in support of that application, the applicant asserted that he had been denied natural justice.

8    The circumstances in which the present application has been brought are conveniently and sufficiently explained in Reasons for Judgment published by the High Court when it dismissed the applicant’s Application for Special Leave to Appeal to that Court from the judgment of Reeves J given on 19 August 2011 (SZOZD v Minister for Immigration and Citizenship [2011] FCA 946). In their Reasons for Judgment published on 1 December 2011 (SZOZD v Minister for Immigration and Citizenship [2011] HCASL 207), Gummow and Kiefel JJ said:

1.    The applicant is a citizen of India and arrived in Australia on 12 June 2010. He applied for a Protection (Class XA) visa on 21 July 2010. On 19 October 2010, a delegate of the first respondent refused his application.

2.    On 13 January 2011, the Refugee Review Tribunal (“the Tribunal”) affirmed the delegate’s decision. The applicant claimed to be a Muslim who suffered discrimination, intimidation, physical harassment and assault from people opposed to Muslims, including Hindu extremists. On 30 November 2010, the Tribunal wrote to the applicant advising that it was unable to make a favourable decision relating to his application on the information before it and inviting the applicant to give oral evidence and present arguments at a hearing on 11 January 2011. No response was received to this letter. The applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. After some further attempts to contact the applicant, the Tribunal decided to make its decision without taking any further action to enable the applicant to appear before it. The Tribunal concluded that there was such a lack of detail in the evidence before it that it could not be satisfied that the applicant had been persecuted for reasons of religion or political opinion.

3.    On 18 May 2011, the Federal Magistrates Court (Raphael FM) dismissed the applicant’s application for review of the Tribunal’s decision. Raphael FM held that the matters raised by the applicant in his application were all matters of a factual nature, and that the applicant had not provided any basis upon which a jurisdictional error could be made out. The Tribunal did not exceed its powers in relation to its decision to affirm the delegate's decision without taking further action to enable the applicant to appear before it.

4.    On 19 August 2011, the Federal Court of Australia (Reeves J) dismissed the applicant’s appeal. His Honour held that the applicant’s grounds of appeal sought to dispute the factual findings of the Tribunal, rather than to identify any jurisdictional error on its part. To the extent that the applicant purported to identify legal errors, the errors alleged were unparticularised or misunderstood Raphael FM’s findings.

5.    The application to this Court does not advance any questions of law that would justify the grant of special leave to appeal. There is no reason to doubt the correctness of the decisions below.

6.    Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

9    The Reasons of Gummow and Kiefel JJ make perfectly clear that the decision of the Tribunal which was dealt with by Raphael FM (SZOZD v Minister for Immigration [2011] FMCA 382) and by Reeves J on appeal is the very same decision which the applicant sought to challenge in the Federal Magistrates Court by his 2012 application in that Court and now seeks to challenge on appeal in this Court.

10    Putting it bluntly, by the present application, the applicant is seeking to relitigate claims made by him which have already been determined against him in the Federal Magistrates Court and in this Court. His attempt to then take his case to the High Court failed.

11    The applicant does not seek to reopen his previous applications. As presently advised, I cannot see any basis upon which he could do so, in any event.

12    It is an abuse of process for a litigant to attempt to relitigate claims which have already been litigated and determined finally against him. That is so, because it is a palpable misuse of the Court’s procedures to invoke those procedures for a second time in relation to the same subject matter and claims for relief as have already been exhaustively considered by this and other Courts in the hierarchy in which this Court is found (see Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at [27]–[28] (pp 93–94) (per French CJ, Gummow, Hayne and Crennan JJ)). In any event, the applicant is estopped from relitigating the matters already determined against him (see Samootin v Official Trustee in Bankruptcy [2010] FCAFC 113 at [9]).

13    The Federal Magistrate was right to dismiss the recent application made by the applicant in the Federal Magistrates Court.

14    For these reasons, the applicant’s Application for Leave to Appeal from the declaration and orders made on 7 June 2012 would be doomed to fail were I to extend time. Accordingly, I refuse to extend the time within which the applicant might seek leave to appeal from those orders.

15    The applicant’s application in this Court will be dismissed with costs. In the circumstances, given that the present application was hopeless from the start, I propose to order that costs be paid on an indemnity basis.

Associate:

Dated:    3 August 2012