Kosi v Minister for Immigration
[2003] FMCA 340
•8 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOSI v MINISTER FOR IMMIGRATION | [2003] FMCA 340 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a bridging visa – no substance to grounds of review – application dismissed summarily. PRACTICE AND PROCEDURE – Summary dismissal of application – whether the application discloses a reasonable cause of action – whether the application is frivolous or vexatious or otherwise an abuse of process – whether the applicant should be permitted to file a further application considered. COSTS – Appropriateness of a costs order where review application is dismissed summarily in the public interest. |
Federal Magistrates Court Rules 2001 (Cth)
Judiciary Act 1903 (Cth), s.78B
Migration Act 1958 (Cth), ss.48B, 417, 474
Migration Regulations
Attorney-General v Wentworth (1998) 14 NSWLR 481
Chung v University of Sydney [2001] FMCA 94
Chung v University of Sydney [2001] FCA 168
Commonwealth Bank of Australia v Inglis (1974) 131 CLR 311
Fancourt v Mercantile Credits Limited (1963) 154 CLR 87
Miller v Wertheim & Anor [2001] FMCA 103
Miller v Wertheim & Anor [2001] FCAFC 156
Tavalu v Minister for Immigration [2003] FMCA 175
Webster v Lampard (1993) 177 CLR 598
| Applicant: | HEIVAHA KOSI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1313 of 2003 |
| Delivered on: | 8 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 8 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
Applicant appeared in person
| Solicitors for the Respondent: | Ms E Warner Australian Government Solicitor |
DIRECTION
Any further application by Ms Kosi for review of a bridging visa decision under the Migration Act 1958 (Cth) is not to be accepted for filing without leave of the Court.
ORDERS
The application is dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1313 of 2003
| HEIVAHA KOSI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by the Minister filed on 23 July 2003 seeking the summary dismissal of the principal application for relief. The Minister's application seeks the summary dismissal of the principal application on the basis that no reasonable cause of action is disclosed and or that the proceeding is frivolous or vexatious. The Court is empowered to dismiss summarily a proceeding if no reasonable cause of action is disclosed or the proceeding is frivolous or vexatious, or the proceeding is an abuse of the process of the court pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001(Cth) (“the Federal Magistrates Court Rules”).
The principal application is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 1 July 2003. The MRT affirmed a decision of a delegate of the Minister not to grant the applicant a bridging visa. The applicant is held in immigration detention. She relies upon her application. The Minister relies upon the application for summary dismissal, the affidavit of Elizabeth Norah Jacqueline Warner filed on 23 July 2003 and written submissions filed on 6 August 2003.
The background to this matter is set out in section A of those written submissions. I adopt that statement of background for the purposes of this judgment:
The applicant has a lengthy immigration history. The applicant is a citizens of Tonga, who arrived in Australia in 1990. She is currently in immigration detention. Her immigration history is briefly set out at page 15.6 to the affidavit of Elizabeth Warner affirmed on 23 July 2003 (“the affidavit”) which is annexure “C”, the decision of the MRT under review in this proceeding. Further detail is provided in the affidavit and repeated here, only in order to give a context to the application.
The applicant sought to challenge the refusal of an application she made to the Minister pursuant to ss.48B and 417 of the Migration Act 1958 (Cth) (“the Migration Act”) in an application filed in the Federal Court of Australia on 27 May 2002. The application was dismissed. She appealed from the first instance judgment of Madgwick J to the Full Federal Court. The appeal was dismissed on 5 December 2002. From the judgment of the Full Federal Court she applied for special leave to appeal to the High Court of Australia on 20 December 2002. The High Court deemed her application for special leave to have been abandoned on 20 June 2003 and wrote to so advise her on 27 June 2003 (see Annexure “E” to the affidavit). After the abandonment of her special leave application she had no other proceedings for judicial review of a decision to refuse the grant of a substantive visa pending in any Court.
The applicant applied for a Bridging Visa E on 16 June 2003. At that time her application for special leave was still pending in the High Court and she stated this was the basis of (and reason for) her application (see Annexure “A”, page 5 of affidavit). The delegate of the respondent accepted that she satisfied the requirements of Subclass 050.212 (see Annexure “B” to the affidavit, page 6). The Bridging Visa E was nevertheless refused for because she was found not to meet other requirements of the Subclass.
The applicant applied for review of the delegate’s decision to the MRT. The MRT affirmed the decision of the Minister in its decision dated 1 July 2003 (Annexure “C”) further finding that by this time, she no longer met the requirements of Subclass 050.212, as the special leave application had been finalised.
In addition, I refer to the immigration history of the applicant set out in the decision of the MRT from paragraph 14 through to paragraph 34. It is apparent from that description of the applicant's immigration history that she has made numerous visa applications. She has applied for both substantive and bridging visas on several occasions. The applicant arrived in this country on 13 July 1990 on a visitor visa. That visa ceased on 15 January 1991 and the applicant remained in Australia unlawfully. It appears that the various visa applications made by the applicant since then have been unsuccessful, with the exception of a bridging visa application which was granted on the basis that the applicant was making satisfactory arrangements to leave Australia. That visa was granted on 23 April 1999. However, the applicant did not leave Australia.
The principal submission made on behalf of the Minister for the summary dismissal of the present review application is that the application cannot succeed. That is because the applicant cannot meet the basic criteria for the grant of a bridging visa of the class sought. The relevant criteria are that the applicant have a proceeding regarding a review application in respect of a substantive visa decision pending, or that the applicant make acceptable arrangements to leave Australia. At the time the applicant made her most recent bridging visa application there was a proceeding pending in the High Court. However, by the time the matter came before the MRT that High Court proceeding had been disposed of. There was no proceeding on foot for the review of a substantive visa decision. In addition, the MRT was not satisfied that the applicant intended to depart Australia. The MRT found that the applicant did not continue to satisfy any of the criteria in the relevant subclauses of the Migration Regulations. Accordingly, the MRT found that it had no alternative but to affirm the decision refusing to grant her a bridging visa.
It seems to me that the decision of the MRT is correct. Even if the applicant could establish some jurisdictional error in the decision of the MRT, it appears inevitable that she could not satisfy the criteria for the grant of a bridging visa. In addition, the application to review the decision of the MRT does not disclose any apparent error in the decision of the MRT.
The first ground is that the applicant is entitled to a bridging visa and that the decision to refuse her a bridging visa was done in bad faith. The applicant is clearly not entitled to a bridging visa. There is no evidence and no likelihood of any evidence of bad faith.
The second ground is that the proceeding involves s.78B of the Judiciary Act 1903 (Cth). That would only be the case if a constitutional issue were raised. No constitutional issue has been raised.
The third ground is that the decision may involve the UN Declaration on the Rights of the Child (CROC). I do not rule out the possibility that the CROC may be relevant to a decision to deport the applicant. The applicant, I am told, has a daughter in Australia. The CROC may also be relevant to a legal proceeding in relation to the lawfulness of the continuing detention of the applicant. However, I see no relevant connection between the CROC and the decision of the MRT in relation to the bridging visa.
The final ground of review is that the applicant seeks to challenge s.474 of the Migration Act. There can be no substance to that ground because the validity of s.474 has already been ruled upon by the High Court.
I have considered the court's power to summarily dismiss an application on several occasions. One of those was in Chung v University of Sydney [2001] FMCA 94. In that case in paragraph 7 through to paragraph 14, I dealt with the general principles relating to the Court's power to dismiss an application on the basis that no reasonable cause of action is disclosed.
At paragraph 14 I concluded that consideration of the relevant principles by stating that I was under an obligation to satisfy myself that there was no arguable case that could be put forward. I also stated that because the applicant in those proceedings was representing himself, I should not limit that consideration to the arguments put forward by the applicant. Where the applicant is self-represented, the Court must independently consider whether an arguable case based on the material could be made out. In that case, I found that there was no arguable case. The decision was upheld on appeal by the Federal Court: Yo Han Chung v University of Sydney [2002] FCA 186.
I considered the issues again in Miller v Wertheim and Anor [2001] FMCA 103. In that case I said at paragraph 5:
In the case of Yo Han Chung v University of Sydney [2001] FMCA 94 I canvassed the general principles applicable in an application for summary dismissal of a principal application pursuant to Rule 13.10. I adopt those same principles in these proceedings noting that as in the case of Yo Han Chung v University of Sydney the principal applicant is unrepresented. In their written submissions, the respondents have also referred to the case of Webster v Lampard (1993) 177 CLR 598 as supporting the proposition that an action should not be permitted to go to trial in the ordinary way where it is apparent that it must fail. The respondents also refer to the case of Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at 99 where it was stated that the power of summary disposal should be exercised where it is clear that there is really no question to be tried. Those decisions are entirely consistent with the authorities I referred to in Chung v University of Sydney. The question I therefore have to resolve is whether there is an arguable case to be put forward by Ms Miller in these proceedings. If there is then I cannot accede to the respondents’ application for summary dismissal, at least on the ground that no cause of action is disclosed. The other basis for the respondents’ application is that Ms Miller’s application is frivolous or vexatious.
At paragraph 6 of that decision I dealt with the question of vexation and frivolity. I said:
The principles relevant to whether or not proceedings are vexatious were summarised by Rodan J in Attorney-General v Wentworth (1988) 14 NSWLR 481 in which his Honour reviewed the judgment in Commonwealth Bank of Australia v Inglis (1974) 131 CLR 311. Rodan J expressed the tests as involving a consideration of whether or not the proceedings were instituted with the intention of annoying or embarrassing the persons against whom they are brought; whether they are brought for a collateral purpose and not for the purpose of having the Court adjudicate upon the issues to which they give rise; and whether they are so obviously untenable or manifestly groundless as to be utterly hopeless.
The decision in Miller v Wertheim & Anor was also upheld by the Full Federal Court: Miller v Wertheim [2002] FCAFC 156.
As Ms Warner has noted in her written submissions, in the matter of Tavalu v Minister for Immigration [2003] FMCA 175, I indicated that that was a matter where, in other circumstances, the question of summary dismissal would have arisen for consideration.
In this matter I am satisfied that there is no substance to any of the grounds of review advanced by the applicant. I invited her to explain the grounds of review to me. She stated that she felt she should receive a bridging visa, she wishes to be reunited with her daughter and she wishes to take her case directly to the Minister. Those explanations indicate to me that the applicant does have a genuine desire to obtain a bridging visa. She is genuinely dissatisfied with the decision of the MRT. However, her wish to obtain a bridging visa, her wish to be reunited with her daughter and her wish to make an appeal directly to the Minister does not give any substance to the grounds to review in these proceedings. The principal application is hopeless. It is bound to fail. In addition, it is futile because the applicant could not satisfy the criteria for the grant of a bridging visa.
I am not satisfied that the application is frivolous or vexatious. The applicant does not understand the grounds of review that she has advanced. In the circumstances, it is hard to say that she has a genuine belief in those grounds. However, she is genuinely dissatisfied with the decision of the MRT. The principal application was brought with the genuine intention of dealing with that decision. In other circumstances a question may well arise whether an application which is utterly hopeless is frivolous or vexatious or is otherwise an abuse of the Court's process. 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. I have no doubt that this applicant wishes to stay in Australia. However, she also wishes to be released from immigration detention. That is why she applied for a bridging visa. It is not therefore simply the case that the applicant has used these proceedings in order to extend her stay in Australia. She has genuinely instituted proceedings in order to seek to obtain a result that would see her released from immigration detention. However, the proceedings she has brought are doomed to fail. I will dismiss her application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.
On the question of costs, the Minister has succeeded in his application for summary dismissal. In the circumstances, under the ordinary principles applied in this court costs would follow the event. Ms Warner has submitted that an order fixed in the sum of $2,500 would be appropriate on a party and party basis. Ms Kosi does not oppose an order for costs in principle but has drawn attention to her difficult financial circumstances while she is in immigration detention.
Impecuniosity is not a reason for the Court to refrain from making a costs order. However, in this matter the public interest element in the proceedings needs to be taken into account. The Minister has brought these proceedings, in my view, in pursuance of the public interest. He has sought the summary dismissal of the principal application for relief in pursuance of that public interest. The principal applicant, Ms Kosi, obviously also has a personal interest in the proceedings. That is why she filed her principal application for relief.
I cannot recall dealing with the summary dismissal of a migration application previously under rule 13.10. In my view, having regard to the substantial element of public interest in the outcome of the Minister’s application, an order for costs against Ms Kosi would be inappropriate. That would not necessarily be so in later proceedings, noting that I intend to publish my reasons for this decision, which will assist in establishing relevant principles.
Ms Kosi has, according to her immigration history disclosed in the MRT decision, lodged a substantial number of visa applications and review applications. Although the application which has been dismissed was not frivolous, it was without substance. The Minister should not be put to further expense in resisting further legal proceedings by Ms Kosi without good cause. I will therefore order that a further application for review by Ms Kosi under the Migration Act in relation to a bridging visa decision not be accepted for filing without leave of the Court.
There will be no order as to costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 August 2003
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