Delivered on 2 December 2004 as
[2004] FMCA 975
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEKZ v MINISTER FOR IMMIGRATION | [2004] FMCA 975 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – notice of motion – notice of motion upheld – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001, r.13.10(c)
SZAWW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
Walton v Gardiner (1993) 177 CLR 378
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
| Applicant: | SZEKZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2872 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing dates | 2 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Ms S Kaur-Bains |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application for judicial review filed on 19 October 2004 be dismissed on the ground that:
(a)Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 the proceedings are an abuse of process of the Court.
The applicant pay the respondent’s costs on an indemnity basis, fixed in the sum of $7,000.
That the applicant not file another application in the Federal Magistrates Court seeking review of the Refugee Review Tribunal’s decision dated 10 June 1998 without leave of the Court.
CORRIGENDUM TO REASONS FOR JUDGMENT
Delivered on 2 December 2004 as [2004] FMCA 975
Amendment to the ex tempore Reasons for Judgment of Lloyd-Jones FM delivered on 2 December 2004.
The above reasons are corrected on page 1 of the Cover Sheet by deleting “22 December 2004” where indicated at “Delivered on:” and inserting “2 December 2004”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2872 of 2004
| SZEKZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment relates to a Notice of Motion filed by the respondent to the substantive proceedings on 22 November 2004. The respondent moves the Court that the substantive proceedings be dismissed as an abuse of process of the Court. The substantive proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed on 20 September 2004 and a subsequent amended application filed on 19 October 2004.
The respondent filed and served an affidavit of Althea Jane Gibson sworn on 22 November 2004 (“the affidavit of Ms Gibson”) which was admitted into evidence.
Background
The applicant, who is a citizen of China, arrived in Australia on
29 November 1994 using a Malaysian passport issued under an assumed name. On 30 August 1995 the applicant lodged an application for a protection visa with the then Department of Immigration & Ethnic Affairs under the Migration Act 1958 (Cth) (“the Act”) (Court Book pp.1-22) (“CB”).
On 29 April 1997 a delegate of the Minister for Immigration & Multicultural Affairs refused to grant a protection visa (CB pp.32-38) and on 27 May 1997 the applicant sought a review of that decision by the Refugee Review Tribunal (“the Tribunal”) (CB pp.39-42).
The applicant was born on 7 March 1972, and claimed he was from the Fujian Province in China where he was a student. The applicant claimed that he and his family suffered discrimination because his grandfather had been classed as a landlord. The different treatment the applicant experienced during his childhood led him to hate the Chinese Communist Party. He claimed he began to express his political opinions at school in 1989 and was criticised and warned in July 1989 because of his enthusiasm for the pro-democracy movement. The applicant claimed he studied political ideas before 1989 (CB p.82).
In a statement accompanying his initial application (CB pp.28-29), the applicant claimed he took part and spoke at political parades in 1989 and that he had visited other schools in the area to meet with other students supporting the reform movement. At the Tribunal hearing, the applicant claimed that in 1989 he began to publish articles and that he set up and headed an organisation of students who supported the pro-democracy movement. He claimed the organisation was not a formal one but a group of like minded young people in his town. The applicant claimed he came to head the organisation because his views were mature, he understood things, people liked him and he published articles.
Litigation history
Counsel for the respondent, Ms S Kaur-Bains, provided a convenient chronology in her submissions which is a summary of the applicant’s litigation history.
a)Background
i)Applicant born in China 7 March 1972
ii)Applicant arrived in Australia 29 November 1994
b)DIMIA
i)Application for protection visa lodged 30 August 1995
ii)Delegate’s decision 29 April 1997
c)RRT
i)Application for review lodged 27 May 1997
ii)RRT hearing 9 April 1998
iii)RRT decision dated 10 June 1998
d)Federal Court
i)Application for order of review lodged 16 July 1998
ii)Orders of Finn J dismissing application 26 November 1999
e)Full Federal Court
i)Notice of appeal lodged 17 December 1999
ii)Notice of discontinuance filed 12 May 2000
f)Federal Magistrates Court
i)Application for judicial review lodged 20 September 2004
ii)Directions hearing 1 October 2004
iii)Notice of objection to competency 8 October 2004
iv)Court book filed and served 11 October 2004
v)Amended application lodged 19 October 2004
On 16 July 1998 the applicant filed an application for an order of review in the Federal Court of Australia (Australian Capital Territory District Registry). These proceedings were allocated the Federal Court proceedings number AG58 of 1998. On 26 November 1999 the Honourable Justice Finn ordered that the application for an order of review in the proceedings number AG58 of 1998 be dismissed with costs.
On 17 December 1999 the applicant filed a Notice of Appeal in the Federal Court of Australia (Australian Capital Territory District Registry). These proceedings were allocated the Federal Court proceedings number A104 of 1999. On 12 May 2000 the applicant filed a Notice of Discontinuance in these Federal Court proceedings.
The applicant appeared before me on 1 October 2004 at a directions hearing for the allocation of a first hearing date. In the Short Minutes of Orders agreed by the parties on that date the applicant was required to file and serve an amended application giving complete particulars of each ground of review being relied upon by him in the application to the Court and any evidence upon which he proposed to rely by 22 October 2004. The applicant complied with these orders and filed an amended application on 19 October 2004. The grounds in the amended application were identical to the grounds relied upon in the Federal Court proceedings number AG58 of 1998 that were the subject of the decision of the Honourable Justice Finn.
Reasons
I note that the proceedings before the Federal Court in 1999 were more restricted in that a limited number of grounds of review were then available. The passage of the Jurisdiction of a Federal Magistrates Services Amendment Act 2001 (Cth) has changed the operation of Part 8 of the Act. This change in the law means that more grounds of review are now available. However, I adopt the reasoning of Driver FM in SZAWW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs that an applicant should not be permitted to take advantage of a change in the law to reactivate proceedings which had earlier denied the review.
When the applicant received this adverse decision to his application for review, he instituted appeal proceedings in the Federal Court. However these appeal proceedings were abandoned by the applicant when he filed his Notice of Discontinuance on 10 May 2000. No further action was taken by the applicant in respect of the Tribunal’s findings until 20 September 2004, a period exceeding four years. The applicant’s apprehension and detention shortly prior to the reinvigorated application no doubt contributed to the period that elapsed.
To permit the applicant to reactivate the review process after it had been considered and rejected by the Federal Court and a judicial review of that decision had been abandoned would be an abuse of the Court’s process. In Walton v Gardiner at 393 the High Court said
“ … proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”
Another issue to consider is why the applicant has reinvigorated these proceedings after a period of four years has elapsed. As the applicant is now in detention for breaches of visa conditions, the motivation may have been to extend the applicant’s stay in the country. My attention has been drawn to another decision of Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where this issue is canvassed and reference is made to the decision in Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where Driver FM stated:
“It would be an abuse of the Court’s process to file an application for review simply for the purpose of extending the period of one’s stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances, there is potential for the Court’s process to be abused by an applicant whose only purpose is to take advantage of that delay.”
The remaining issue that arises from this previous point is whether the current proceedings for a substantive review is frivolous or vexatious. In support of this view I refer to the decision of his Honour Justice Finn in the proceedings on 26 November 1999 at [16]:
“The Tribunal’s decision adverse to the applicant turns significantly on its view of [the applicant’s] credibility. There clearly was material before it that could found that view.”
I have been asked to make an order that no further application for judicial review of the decision of the Tribunal dated 10 June 1998 should be accepted for filing by the Registry without leave of the Court. For the reasons expressed above, I believe the applicant has been provided with the appropriate avenues to fully explore his legal rights and that has been appropriately dealt with. Any further attempt to re-ventilate the issues is inappropriate and should not be entertained without legitimate reasons being presented before the process is again revisited.
Conclusion
I believe that to continue this matter would be an abuse of process and consequently dismiss the application pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
I believe the applicant should pay the respondent’s costs on an indemnity basis.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 December 2004
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