A47 of 2003 v Minister for Immigration & Anor

[2007] FMCA 1661

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A47 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1661

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal functus officio – no arguable case – proceedings vexatious and an abuse of process of the Court.

PRACTICE AND PROCEDURE – Application under r.13.11 should be made in accordance with r.13.11(4).

Migration Act 1958, s.476
Federal Magistrate Court Rules 2001, rr.13.11, 13.10

Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor (1997) 76 FCR 301
SZASP v Minister for Immigration & Citizenship [2007] FCA 771
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311

Applicant: APPLICANT A47 of 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2118 of 2007

Judgment of: Cameron FM

Hearing date: 13 September 2007

Date of Last Submission: 13 September 2007

Delivered at: Sydney

Delivered on: 13 September 2007

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to r.13.10 of the Rules of Court the application be dismissed.

2. The first respondent's application for an order that the applicant not be permitted to make further application to this Court to review the decisions of the Refugee Review Tribunal handed down on 8 July 2003 and 26 April 2007 without leave of the Court be refused

3. The applicant pay the first respondent's costs fixed in the amount of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2118 of 2007

APPLICANT A47/2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter is before the Court today on the applicant's application that the Minister show cause why a remedy should not be granted under s.476 of the Migration Act. An order to show cause will not be made if the applicant does not have an arguable case. An arguable case does not exist if a lack of a cause of action is clearly demonstrated, the claim is groundless or there is a high degree of certainty about the outcome. The proceedings may also be dismissed if they have no reasonable prospects of success, are frivolous or vexatious or are an abuse of the process of the Court.

2. In this case the relevant facts are found in the affidavit of Jonathan Mark Dooley, affirmed on 27 July 2007. The chronology of events arising out of the applicant's claim for a protection visa as extracted from Mr Dooley's affidavit is as follows:

   (a)the decision of the Minister's delegate was made on 25 September 2001;

   (b)on 7 January 2003 the Refugee Review Tribunal (“Tribunal”) handed down its decision affirming the decision of the delegate which had been to refuse to grant a protection visa to the applicant;

   (c)on 30 April 2004 Emmett J in the Federal Court on remittal from the High Court's original jurisdiction refused the applicant's application for orders nisi for certiorari, mandamus and prohibition;

   (d)on 9 June 2005 Nichols FM dismissed the applicant's application for review of the Tribunal's decision;

   (e)on 29 November 2005 Bennett J in the Federal Court dismissed the applicant's appeal from the decision of Nichols FM;

   (f)on 5 September 2006 the applicant's application for special leave to appeal to the High Court was dismissed;

   (g)on 20 March 2007 Nichols FM dismissed a further application to this Court;

   (h)on 13 April 2007 the applicant lodged a further application to the Tribunal for review of the original decision of the delegate many years previously; and

   (i)on 12 June 2007 the Tribunal signed its decision concluding that it had no jurisdiction to entertain the application on the basis that on the previous occasion in 2003 it had exercised those powers which it had to review the delegate's decision. It concluded that having exercised those powers it was unable to exercise them on a second occasion.

3. In this case it is clear that the applicant's application is certain to fail because the Tribunal was correct to conclude that it did not have jurisdiction to conduct a second review of the delegate's decision. That is clear from the decision of Goldberg J in Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 and the decision of Moore J in SZASP v Minister for Immigration & Citizenship [2007] FCA 771.

4. In my view the applicant's case is not arguable.

5. Now, regardless of whether the applicant's case is arguable or not there remains the issue of whether the proceedings fall within r.13.10 of the Rules of Court which deals with proceedings which have no reasonable prospect of success, are frivolous or vexatious or are an abuse of the process of the Court. In SZASP's case the applicant had also sought a second review by the Tribunal of a delegate's decision. At [22] of his Honour’s decision, Moore J concluded that those proceedings, together with the other proceedings his Honour was considering, was an abuse of the process of the Federal Court. So it is here. It is clear that the applicant will not accept the decisions either of the Tribunal or of the courts of this country and persists in pursuing a claim which has already been determined against him.

6. In the circumstances I am satisfied that the proceedings do not present an arguable case and are vexatious and an abuse of the process of the Court. Consequently they will be dismissed pursuant to r.13.10.

7. As the applicant has been unsuccessful in these proceedings the Minister has sought two additional orders. The first one of those is an order preventing the applicant from bringing further applications to the Court in relation to the decisions of the Tribunal without leave of the Court. The Minister has also sought an order for costs.

8. In relation to the first of those orders sought, a number of considerations apply and although I am aware that some of my brother Federal Magistrates are willing to make such an order I remain to be convinced, as to date no detailed submissions have been made to me in relation to the jurisdiction of the Court to make such an order, that the Court indeed does have such jurisdiction. In that regard I note the guidance given by the High Court in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 where the High Court held that it had no power to prevent a litigant from commencing proceedings unless that power was given to the Court by statute or rules. The application sought by the Minister on this occasion is not one which is expressly provided for in r.13.11 of the Rules of Court, even though it might be seen possibly to be a subset of an ordinary, standard order under r.13.11(1) – that an applicant not be allowed to bring any proceedings in the Court without leave.

9. However, without detailed argument on whether the Court is empowered to make an order otherwise than in the express terms provided by the Rules I am not willing to make such limited order. In any event, it is appropriate that if a party seeks such an order it should do so by application as required by r.13.11(4) which was not the case on this occasion. That is only appropriate given the seriousness of the order which is sought. Consequently the first respondent's application for an order that the applicant not be permitted to bring further applications to the Court arising out of the decisions of the Refugee Review Tribunal handed down on 8 July 2003 and 26 April 2007 will be refused.

10. The second order sought by the Minister was one for costs. There was nothing in the conduct of these proceedings which suggests to me that the ordinary course should not be followed, namely that costs follow the event. The amount sought by the Minister is $1,500 and the amount prescribed by the rules for a hearing such as this is $2,500. In the circumstances I am satisfied that the amount sought by the Minister is a reasonable one and it will be awarded to him.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  18 October 2007