Hu v Minister for Immigration
[2008] FMCA 804
•19 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 804 |
| MIGRATION – Practice & Procedure – third application for judicial review to Federal Magistrates Court – functus officio – summary dismissal of proceedings under Federal Magistrates Court Rule 13.10(c) – abuse of process – collateral purpose of extending stay in Australia. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.417 Federal Magistrates Court Rules 2001, Rule 13.10, 13.11 |
| HU & ORS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1030 HU & ORS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 299 HU & ORS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 564 HU & ORS v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FMCA 1370 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 145 ALR 532 Leung v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 76 Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 SZEBS v Minister for Immigration & Multicultural Affairs [2006] FCA 456 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Walton v Gardiner (1993) 112 ALR 289 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78 NALE v Minister for Immigration [2003] FMCA 366 |
| First Applicant: | JOO SUNG HU |
| Second Applicant: | SIN AE NHO |
| Third Applicant: | EUNICE HU |
| Fourth Applicant: | CHAN HU |
| Fifth Applicant: | WON HU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 384 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 26 May 2008 |
| Date of last submission: | 26 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Joo Sung Hu is appointed litigation guardian in respect of Eunice Hu, Chan Hu and Won Hu under Rule 11.11(1) of the Federal Magistrates Court Rules 2001 and the requirement for the filing of an affidavit of consent in Rule 11.11(2) is dispensed with.
The application filed by the applicant on 19 February 2008 is dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) on the ground that the proceeding or claim for relief is an abuse of process of the Court.
The Court directs that no further application by the applicant for review of a decision of the Migration Review Tribunal or of a delegate or of the Minister in any way relating to his Temporary Business entry visa (Subclass 457) filed on 11 March 1998 be accepted for filing in this Court except with leave of the Court.
The Court directs that the Court registry be notified forthwith in accordance with the above order.
The First Applicant pay the First Respondent’s costs fixed in the sum of $5,000 payable within six (6) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 384 of 2008
| JOO SUNG HU |
First Applicant
| SING AE NHO |
Second Applicant
| EUNICE HU |
Third Applicant
| CHAN HU |
Fourth Applicant
| WON HU |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
The present application was filed in the Federal Magistrates Court on 19 February 2008, pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act), seeking review of the decision of the Migration Review Tribunal (the Tribunal) signed on 15 January 2008, which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a temporary business entry visa (Subclass 457), to the applicants.
The first respondent now seeks orders pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (the Rules) for summary dismissal of the application as an abuse of process in light of the litigation history of the applicants.
Background
The first applicant (the applicant) is a Korean national, born on 12 July 1959.
On 11 March 1998 he applied with his wife and children, (the second, third, fourth and fifth applicants), for a temporary business entry visa (Subclass 457), (the visa), with the Korean Television Network applying for approval as his business sponsor, at the same time.
On 26 July 2001 the delegate refused to grant the visa.
Litigation history
I accept that the first respondent’s written submissions accurately summarise the litigation history of this matter, as follows:
·On 22 August 2001 the Applicants applied for MRT review of the delegate's decision. On 23 July 2003 the MRT [the first Tribunal] affirmed the delegate's decision[1].
·On 23 July 2003 the Applicants applied to the Federal Magistrates Court of Australia for judicial review of the decision of the MRT dated 23 July 2003 in proceedings SYG1966 of 2005[2]. On 1 July 2005 Federal Magistrate Raphael dismissed the application for judicial review in proceedings SYG1966 of 2005: HU & ORS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1030[3].
·On 18 July 2005 the Applicants filed a Notice of Appeal in the Federal Court of Australia in proceedings NSD1422 of 2005[4]. On 31 March 2006 Justice Allsop dismissed the appeal in proceedings NSD1422 of 2005: HU & ORS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 299[5].
·On 28 April 2006 the Applicants filed an application for special leave to appeal in the High Court of Australia in proceedings S122 of 2006[6]. On 6 October 2006 Justices Gummow and Heydon dismissed the Applicants' application for special leave to appeal in proceedings S122 of 2006: HU & ORS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 564[7].
·On 26 October 2006 the Applicants applied again for further MRT review of the delegate's decision. On 24 April 2007 the MRT [the second Tribunal] determined it had already discharged its functions under the Migration Act 1958 ("Act") to review the delegate's decision of 26 July 2001, and that it no longer had jurisdiction in relation to that decision[8].
·On 1 June 2007 the Applicants applied to the Federal Magistrates Court of Australia for judicial review of the MRT decision dated 23 July 2003 (which had previously been the subject of judicial review in proceedings SYG1966 of 2005) in proceedings SYG1734 of 2007[9]. On 13 June 2007 Federal Magistrate Driver dismissed the application for judicial review in proceedings SYG1734 of 2007: HU & ORS v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FMCA 1370[10].
·On 6 September 2007 the Applicants applied again [for a third time] for further MRT review of the delegate's decision. On 15 January 2008 the MRT [the Tribunal] again determined that it did not have jurisdiction to review the decision[11].
·On 19 February 2008 the Applicants commenced these proceedings in the Federal Magistrates Court seeking review of the MRT decision dated 15 January 2008.
[1] See affidavit of Jaimee Dinihan sworn on 18th March 2008 ("affidavit") at 1-5.
[2] affidavit at 6-9.
[3] affidavit at 10-18.
[4] affidavit at 19-21.
[5] affidavit at 22-31.
[6] affidavit at 32-35.
[7] affidavit at 36-39.
[8] affidavit at 40-42.
[9] affidavit at 44-50.
[10] affidavit at 51-60.
[11] affidavit at 61-63.
The Tribunal’s findings
I accept that the first respondent accurately sets out the Tribunal’s findings, as follows:
a) the delegate's decision was MRT-reviewable. However, it noted that the Applicants previously lodged an application for review of that decision on 22 August 2001. In those circumstances, the MRT noted it had conducted a review and therefore discharged its function under section 348 of the Act;
b) this was the third review application lodged by the Applicants for review of the same primary decision and accordingly, this third application was an abuse of the MRT's process; and
c) it determined that it no longer had jurisdiction to review the delegate's decision of 26 July 2001 as it already discharged its functions under the Act.
The proceedings before this Court
The first respondent filed an amended response in this Court on 20 March 2008, seeking the following order:
1. The First Respondent submits that the Court should dismiss the application as an abuse of process in light of the litigation history of the Applicant.
The applicant appeared in person before the Court on 26 May 2008 with the assistance of a Korean interpreter. Ms Mafessanti appeared for the first respondent.
Whether functus officio
The first respondent submits that:
In this case, the First Tribunal reviewed and affirmed the delegate's decision not to grant the Applicants a Temporary Business entry visa on 23 July 2003. This means the Second and Third Tribunals were functus officio. In Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, Justice Goldberg considered this doctrine and stated "the effect of the application of this doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform." Accordingly, the Second and Third Tribunal could not exercise any of their statutory obligations under Division 4, Part 7 of the Act to review the delegate's decision for a second or third time and therefore did not "constructively fail to exercise its jurisdiction."
In Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 145 ALR 532, Goldberg J, after a detailed examination of the case law and relevant statutory provisions and applying the doctrine of functus officio whereby once the statutory function is performed there is no further function or act for the person authorised under the statute to perform, held that the Tribunal does not have the power to reconsider or reopen a final decision it has made on its review determining the substantive application.
In Leung v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 76, Finkelstein J at 85 referred to Jayasinghe v MIEA and to the decision of Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, in which French J concluded that there was no power to reconsider an entry permit refusal by a Minister:
French J held that the implication of such a [reconsideration] power could generate endless requests for reconsideration and given that the Migration Act 1958 (Cth) contains specific provisions for the review of decisions the implication should not be made. In Jayasinghe Goldberg J came to the same conclusion with regard to the [RRT]…
In Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at [35], Merkel J stated that:
…the RRT is functus officio upon a valid decision being handed down in accordance with the requirements of the Act.
This statement in Singh was adopted by Jacobson J in SZEBS v Minister for Immigration & Multicultural Affairs [2006] FCA 456 at [9].
In Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, the High Court recognised that some qualification should be placed on the doctrine of functus officio by its adoption of the reasoning of the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 862, that:
…as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision …However, the [Supreme Court of Canada] held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and "there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation" (Gleeson CJ at [7]).
and that:
…In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct….a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so… (Gaudron and Gummow JJ at [53]).
Applying these principles in the present context, the first Tribunal decision was a valid and final decision reviewing the delegate’s decision. In this regard, it has been the subject of judicial scrutiny by the Federal Magistrates Court, the Federal Court, and the High Court. No jurisdictional error was found.
As relevantly observed by Allsop J :
What is clear is that the reasoning of the Tribunal was intractable. An essential criterion for Mr Hu’s visa was absent. He did not have an approved sponsor – either Korean TV or his current employer …
I am unable to discern any error in the Federal Magistrate’s reasons. None has been illuminated in address.
Furthermore, as observed by Gummow J in the special leave application:
The Migration Review Tribunal refused an application for review on the ground that the delegate was correct. The Federal Magistrates Court (Raphael FM) dismissed an application for judicial review, and Allsop J dismissed an appeal, on the ground that the first applicant did not have an approved business sponsor.
The applicants’ application for special leave to appeal to this Court must be dismissed, because there is no possibility that they will demonstrate error if special leave were granted.
Applying the relevant legal principles, I consider that the present Tribunal was correct in finding that it did not have the power to reconsider the delegate’s decision a third time. I accept that the first Tribunal made a valid decision in accordance with the requirements of the Act and thereby discharged its statutory functions under the Act. The present Tribunal was thus functus officio and no longer had jurisdiction in regard to the delegate's decision.I accept the first respondent’s submission on these matters. In these circumstances, the qualification on the doctrine of functus officio, as recognised by the High Court in MIMA v Bhardwaj, does not apply.
Whether abuse of process
Rule 13.10 of the Rules provides that:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Following the exhaustive judicial review process referred to above of the first Tribunal’s decision, the applicant has now sought review on each of two further occasions by the second and present Tribunals, each of whom determined that they did not have jurisdiction to review the decision, it having been already finally determined by the first Tribunal. The second Tribunal’s determination was upheld by Driver FM in this Court.
As to whether the present proceedings constitute an abuse of process, the High Court in Walton v Gardiner (1993) 112 ALR 289 referred to the underlying public interest in the finality of litigation. It further held, at 298, that:
… proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail … proceedings before a court should be stayed as an abuse of process if… their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which has already been disposed of by earlier proceedings.
Also, in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242, the Full Federal Court, at [36] observed:
It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
I consider that the present application fits squarely within the description of a claim foredoomed to fail and one where the applicant is seeking to litigate anew a claim that has already been disposed of by a history of earlier proceedings and in which all rights of appeal have been exhausted. It is clear from the judicial history of the current proceedings, including the above-quoted observations by Allsop J and Gummow J that the applicant has no prospects of success.
I consider that to allow the applicant to commence a further, and wholly unmeritorious, application before this Court would involve the resources of the community being expended in further litigation on a matter that has been now authoritatively and finally settled.
The Federal Court in Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78, held (at 85), that:
…the claim is an abuse of process because it is brought as a means of obtaining some advantage for which such proceedings are not designed or some collateral advantage beyond what the law offers.
I consider that it is open to the Court to draw the inference, in all the circumstances, that the applicant has instituted the present third application to this Court in order to use the Court’s process purely for the collateral purpose of extending his period of stay in Australia.
I consider that this collateral purpose constitutes an abuse of the process of this Court (and see NALE v Minister for Immigration [2003] FMCA 366 at [12]).
The relevant legal principles, where a repeated application for review of a delegate’s decision is made, are now well-settled and should be well-understood. Given the litigation history of this case, and where the applicant has brought a third wholly unmeritorious application before this Court, notwithstanding a final and definitive High Court decision, I am satisfied that the present proceedings constitute an abuse of the process of the Court. In these circumstances, I consider that appropriate orders should be put in place to ensure that the Court’s process is not further abused in the future.
For the above reasons, I am satisfied that the present proceedings should be summarily dismissed under Rule 13.10(c) of the Rules as being an abuse of process.
Conclusion
The order sought by the first respondent in the amended response that the Court dismiss the application as an abuse of process is upheld.
The application filed on 19 February 2008 is dismissed pursuant to Rule 13.10(c) of the Rules as an abuse of process. The Court makes the following consequential orders:
·The Court directs that no further application by the applicant for review of a decision of the Migration Review Tribunal or of a delegate or of the Minister in any way relating to his Temporary business entry visa (Subclass 457) filed 11 March 1998 be accepted for filing in this Court except with leave of the Court.
·The Court directs that the Court registry be notified forthwith in accordance with the above order.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 19 June 2008
14
3