A87 of 2003 v Minister for Immigration
[2005] FMCA 1689
•10 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A87 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1689 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – where application already heard and decided. PRACTICE & PROCEDURE – Objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – where applicant was notified on 17 September 2002 but application for judicial review not filed until 23 August 2005 – abuse of process – issue estoppel – res judicata – Anshun estoppel – whether blatant abuse of process – third application to a court in its original jurisdiction – whether application vexatious – whether applicant is a vexatious litigant. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 477 (1A) Federal Magistrates Court Rules, rr.13.10, 13.11 |
| Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 919 Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 20 Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 NACU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 42 Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2 |
| Applicant: | APPLICANT A87 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2324 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 November 2005 |
| Date of Last Submission: | 10 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Refugee Review Tribunal is joined as Second Respondent to the proceedings.
That the application is not competent.
That the application is summarily dismissed as the claim for relief is:
(a)Vexatious; and
(b)An abuse of the process of the Court.
No application by the Applicant for review of the decision of the Refugee Review Tribunal made on 27th August 2002 and handed down on 17th September 2002 is to be accepted for filing in any Registry of the Court without leave of the Court.
UNTIL FURTHER ORDER the Applicant is restrained from filing or attempting to file any application for review of the decision of the Refugee Review Tribunal made on 27th August 2002 and handed down on 17th September 2002 in any Registry if the Court without leave of the Court.
The Applicant is to pay the First Respondent’s costs on an indemnity basis in the sum of $3,800.00.
The Applicant is warned that if he seeks to institute any further proceedings in this Court seeking review of the said decision of the Refugee Review Tribunal without reasonable grounds he is liable to be declared a vexatious litigant.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2324 of 2005
| APPLICANT A87 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court today involves two interlocutory applications brought by the respondent. They each relate to the substantive application which is an application filed by the applicant in this Court on 23rd August 2005 seeking review of a decision of the Refugee Review Tribunal that was made on 27th August 2002 and handed down on 17th September 2002.
The respondent Minister has filed a notice of objection to competency objecting to the jurisdiction of this Court to trial the application on the ground that the decision was handed down on 17th September 2002 but the application for review was not filed until 23rd August 2005, thereby contravening the requirement of s.477(1A) of the Migration Act.
Sub-s.477(1A) of the Act provides that an application to the Federal Magistrates Court under s.39B of the Judiciary Act 1903 (Cth) and
s.483A of the Migration Act 1958 (Cth) must be made within 28 days of the notification of the Tribunal decision. It is clear that this application is nearly three years out of time.
A notice of objection to competency will not succeed if the substantive applicant can show that the decision of the Tribunal was not a privative clause decision within the meaning of s.474 of the Migration Act.
A decision will not attract the protection of s.474 if it is tainted by jurisdictional error. The respondents submit that there is no jurisdictional error and the decision is a privative clause decision.
The respondent Minister has also brought a notice of motion which was filed on 22nd September 2005. That notice of motion seeks summary dismissal of the applicant's application on the grounds that: a) the doctrine of res judicata applies and is a complete bar to the application; b) the doctrine of issue estoppel applies and is a complete bar to the application; c) Anshun estoppel applies and there are no special circumstances to justify its non-application; and d) that the proceedings are an abuse of process.
The Minister also seeks orders that the applicant should pay the respondent Minister's costs on an indemnity basis and that no further application by the applicant to review the decision of the Refugee Review Tribunal handed down on 17th September 2002 be accepted for filing except with leave of the Court, and also any other order that the Court sees fit.
The applicant on the material before me has previously sought judicial review of the decision of the Refugee Review Tribunal. He did that by means of an application filed in the Federal Court of Australia in Sydney on 21st October 2002. On 29th January 2003 in the Federal Court, Wilcox J dismissed the application with costs. In the Court's decision, his Honour noted the decision of the Tribunal which dealt with the applicant's claim to have been sentenced to five years imprisonment at a trial held in his absence in his native country.
The Tribunal did not accept the applicant's claim. Wilcox J held that it was apparent that there was no basis for the Court to grant relief to the applicant. His Honour dismissed the application with costs.
The citation for that decision is NACU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 42.
The applicant did not lodge an appeal against that decision; instead, he commenced proceedings with the aid of a South Australian solicitor in the High Court of Australia by way of an application for an order nisi. The solicitor was one Mark Wallis Clisby, whose name appears on the documents. That application was filed on 18th February 2003. Proceedings were allocated High Court Proceedings No. A87 of 2003, which is the pseudonym under which this applicant is known in these proceedings. On 11th June 2003 Hayne J ordered that those proceedings be remitted to the Federal Court of Australia. On 10th March 2004 the applicant filed an amended application and an accompanying affidavit in those proceedings.
I am told that on 24th March 2004 the solicitor for the applicant, Mr Clisby, sent a fax to the solicitors for the respondent indicating that his instructions had been withdrawn and that his file had been handed over to the applicant.
On 1st April 2004, the respondent filed a notice of motion seeking the summary dismissal of the proceedings on the grounds of res judicata, Anshun estoppel and abuse of process. On 15th July 2004 in the Federal Court, Lander J ordered that the respondent's application to dismiss the proceedings be allowed on the basis that Anshun estoppel applied, that the application was an abuse of process and no reasonable cause of action was disclosed. On that occasion, I note that the applicant had claimed that the Tribunal did not comply with the mandatory obligations that are contained in s.424A of the Migration Act.
The Court dealt with that application in a decision of some length on 15th July 2004, a decision of some 48 paragraphs. I do not propose to traverse the matters contained in his Honour's judgment except to note that at paragraph 40 of the judgment his Honour said:
In my opinion, the Anshun principle applies and the present proceedings are an abuse of process. For that reason the application should be dismissed.
His Honour went on to say that:
In case I am wrong about that, I will consider the application on its merits in any event.
And at paragraph 42 his Honour said:
In my opinion, the applicant's claim is completely without merit.
His Honour went on to say at paragraph 48:
In my opinion, the application which has been brought by the applicant is entirely without merit and has no prospects of success. In those circumstances, the respondent's notice of motion has to succeed on that ground as well.
Undeterred by this, the applicant on 2nd August 2004 filed a notice of appeal to the Full Court of the Federal Court. That appeal was heard by Finn, Dowsett and Selway JJ and was dismissed with costs on
25th February 2005. I note that the citation for the proceedings before Lander J in the Federal Court is Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 919. Citation for the decision of the Full Court is Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 20.
The applicant then sought special leave to appeal to the High Court of Australia on 16th March 2005. On 1st August 2005, Gummow and Kirby JJ dismissed the application for special leave to appeal.
What the applicant then did was commence fresh proceedings in this Court on 23rd August 2005. In that application he again seeks judicial review of that same decision of the Refugee Review Tribunal.
He provides a set of grounds in which he claims an excess of jurisdiction, or constructive failure to exercise jurisdiction, denial of natural justice, bias, apprehension of bias, denial of procedural fairness, failure to investigate, rather vague reference to country information, an application for review on the ground that the Tribunal was preoccupied. And a reference to the decision of the High Court of Australia in Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2, and a reference to an article by Dr Mary Crock and Catherine Chang relating to making sense of the rule of law, trends in the judicial review of migration decisions post S157 of 2002 v Commonwealth of Australia (supra).
In his oral submissions to the Court, the applicant did not deny that he had commenced those proceedings. He complained that no Court had understood about the way a trumped up charge could lead to a person being sentenced, as he says he was, to five years imprisonment in his absence. He also complained about the use of country information in the proceedings without his being given appropriate notice under s.424A of the Migration Act.
Of course, the reality is that the issue of his imprisonment, which was ostensibly dealt with by the Tribunal, was also dealt with by Wilcox J in the first of the applicant's applications for review of the decision. The question of giving of notice under s.424A of the Migration Act was dealt with by Lander J in the second of the applicant's applications for review of the RRT decision. Justice Lander's decision was, of course as I mentioned earlier, upheld on appeal by the Full Court. The High Court of Australia refused a grant of special leave to appeal.
What the applicant has commenced here is his third application to a Court in its original jurisdiction seeking review of the same decision.
I note that the second application was actually commenced in the original jurisdiction of the High Court before it was remitted to the Federal Court, so the applicant has now commenced proceedings in all three courts in the federal system that have jurisdiction to hear such matters. It is not my understanding that the only other Court in the federal system, the Family Court of Australia, has no jurisdiction to entertain such an application.
It is a matter of concern that in the second proceedings Lander J described the application as an abuse of process. In my view, this is still an abuse of process but it is made more serious and aggravated, or blatant abuse of process, in that it is abuse of process upon abuse of process.
The substantive application, of course, is not competent in that it has been commenced outside the time set out by s.477(1A) of the Migration Act. As the Federal Court has twice found the decision of the Refugee Review Tribunal to be a privative clause decision, untainted by jurisdictional error, and that second finding has been upheld on appeal, it is apparent that the issue of whether the decision is a privative clause decision has been decided finally. It would be inappropriate for me to even entertain an application challenging that finding. It is a classic example of res judicata.
The applicant has also brought a variety of claims, as I have said, which he could well have argued in either of his two previous applications to a court in its original jurisdiction. And as Lander J found in the second application, Anshun estoppel applies. With respect to his Honour, in my view it still applies. Justice Lander found that these proceedings were an abuse of process, they still are. They are, as I said, an aggravated abuse of process, to such an extent that the applicant is in serious jeopardy of being declared a vexatious litigant.
I had occasion in considering this matter to remind myself of the provisions of r.13.11 of the Federal Magistrates Court Rules which contains the heading "Vexatious Litigants". Sub-rule 1 says:
If the Court is satisfied that a person has instituted a vexation proceedings and the Court is satisfied that the person has habitually, persistently and without reasonable grounds, instituted other vexatious proceedings in the Court or any other Australian Court (whether against the same person or against different persons) the Court may order:
a) that any proceeding instituted by the person may not be continued without leave of the Court; and
b) that the person may not institute a proceeding without leave of the Court.
I propose to dismiss the substantive application because it is not competent. In other words, I allow the notice of objection to competency. I propose to allow the notice of motion that the applicant's application filed on 23rd August 2005 be dismissed on the grounds that: a) the doctrine of res judicata applies; b) that Anshun estoppel applies and there are no special circumstances to justify its non-application; and c) that the proceedings are an abuse of process. But I also find that this application is vexatious. The applicant is in serious jeopardy of being declared a vexatious litigant. I note that he is not legally represented and I have drawn back from making that finding today. He should be warned, however, that if he seeks to institute any further proceedings in this Court seeking review of the same decision of the Refugee Review Tribunal without reasonable grounds, he is liable to be declared a vexatious litigant.
I would comment further that an examination of the chronology of all of the applications that this applicant has lodged shows that each one has been filed just less than 28 days from the previous Court appearance. That of course allows for a bridging visa to continue, and it is an explanation why such proceedings are brought in this Court without any merit whatsoever. Because it obtains a hearing date, which allows a bridging visa to tick over until 28 days after the hearing date. The Minister for Immigration & Multicultural & Indigenous Affairs, in the light of the Court's findings that these proceedings are not only an abuse of process but also vexatious, may well seek to consider why the applicant should continue to hold a bridging visa.
I dismiss the application with costs. I am also of the view that this is an appropriate matter for costs to be granted on an indemnity basis as set out in Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225.
I am satisfied the applicant should pay the first respondent's costs on an indemnity basis in the sum of $3,800.00 and I make these orders.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 15 December 2005
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