SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1414

FEDERAL COURT OF AUSTRALIA

SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1414 SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581, discussed SZAYH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 1397 of 2005 MADGWICK J SYDNEY 16 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1397 OF 2005

BETWEEN: SZAYH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 16 SEPTEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be added as the second respondent. 2. The application for leave to appeal be dismissed. 3. The applicant pay the first respondent's costs, assessed in the sum of $550. 4. No further process be received in the Registry of this Court from the applicant which seeks to review or disturb the decision of the Refugee Review Tribunal handed down on 17 June 2003 (reference number N02/43000) without prior leave of a Judge of the Court.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1397 OF 2005

BETWEEN: SZAYH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MADGWICK J

DATE: 16 SEPTEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of the Federal Magistrates Court given by Federal Magistrate Smith on 26 July 2005: SZAYH v Minister for Immigration [2005] FMCA 1122. His Honour there dismissed an application for review, filed in that Court on 15 June 2005, which sought judicial review of a decision of the Refugee Review Tribunal ('Tribunal') adverse to the applicant which had been handed down as long ago as 17 June 2003. The applicant had previously brought similar proceedings in respect of the same Refugee Review Tribunal decision in the Federal Magistrates Court in 2004. Federal Magistrate Smith said (at [4]): 'The previous history of the matter appears in the judgment of Driver FM in SZAYH v Minister for Immigration [2004] FMCA 771. In that proceeding, his Honour addressed an application for review invoking the same jurisdiction as is invoked on the present application before me, and in relation to the same decision of the Tribunal and against the same respondent. His Honour dealt with grounds of review which covered the whole gamut of judicial review grounds, and significantly he said as follows: "11. Because the applicant is self represented I have independently considered whether any jurisdictional error is apparent in the decision of the RRT. In my view there is none. It follows that the RRT decision is a privative clause decision and the application must be dismissed." His Honour then made an order on 5 November 2004 dismissing the application with costs.' 2 The applicant appealed to this Court from that decision of Federal Magistrate Driver and, on 24 January 2005, Justice Moore dismissed the appeal, concurring with the opinion of Federal Magistrate Driver that no jurisdictional error on the part of the Tribunal had been demonstrated. 3 The applicant then sought special leave to appeal to the High Court, and the High Court dismissed that application on 26 May 2005. Hayne J there said that there was no reason to doubt the correctness of the Federal Court decision. 4 Federal Magistrate Smith continued with a narrative of succeeding events (at [7] – [8]): 'Within a month of their Honours' order [in the High Court], the applicant filed his present fresh proceeding in this Court. His application contains nine unparticularised grounds for review in a form similar to the application which had initiated the proceeding that was dealt with by Drive FMr, and indeed all but two of its paragraphs are verbatim reproductions of the earlier application. The only additional allegation is in paragraph 3: "The Tribunal did not observe Migration Act 1958 properly. The Tribunal decision was actual bias". However, the issue of bias was dealt with by Driver FM and Moore J. The other paragraph which is novel does not plead a ground of judicial review…'. 5 Federal Magistrate Smith was dealing with a Notice of Objection to Competency filed by the respondent which raised issues of res judicata, issue estoppel and abuse of process. The learned Federal Magistrate referred to a document filed by the applicant entitled 'Applicant's Argument for Competency' and said of it (at [9]): '…it does not appear to raise any ground which could not reasonably have been raised by the applicant in the previous proceeding. Even if there is not a strict resjudicata, the applicant has not been able to point to any new ground which he should be allowed to pursue in fresh proceedings under principles of Anshun estoppel (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).' 6 His Honour continued (at [10]): 'When today the applicant's attention was drawn to the problems facing his attempt to re-litigate issues previously pursued, he could not present any argument which shows any prospects of overcoming the outcome of the previous litigation.' 7 His Honour concluded in [11]: 'I consider that he has no prospects at a hearing on his application. It is manifestly hopeless, and is an abuse of process due to the previous judgments against him.' 8 His Honour went on to give a direction that the Registry of the Federal Magistrates Court should not receive any further application for judicial review in relation to the subject decision of the Tribunal without first obtaining the leave of the court. 9 The applicant does not suggest any relevant error of fact, law or principle by the learned Federal Magistrate, nor do I perceive any. There is no chance whatever of a successful outcome should the leave sought be granted, so if leave is refused there will be no question of any injustice being suffered by the applicant. It is inevitable that the application for leave to appeal should be dismissed with costs. 10 The respondent also seeks an order similar to that made by the Federal Magistrate that, in effect, no further proceeding should be initiated in this court concerning the subject Tribunal decision without prior leave of a Judge of the Court. In SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 212 ALR 581 at para 29 Jacobson J thought that the Federal Magistrates Court had power to make such an order and it appears to me that this court similarly has power to do so. 11 In the lamentable circumstances of his refusal to accept his legal fate, I think it is appropriate to make such an order against the applicant in protection of the Court, and of the respondent. 12 The Tribunal will be added as the second respondent to the proceeding. 13 The application for leave to appeal is dismissed with costs, assessed in the sum of $550. I order that no further process be received in the Registry of this Court from the applicant which seeks to review or disturb the decision of the Refugee Review Tribunal handed down on 17 June 2003 with reference number N02/43000 without prior leave of a Judge of the Court. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.