M55 of 2002 v Minister for Immigration - [2005] FMCA 1600

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M55 of 2002 v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1600

MIGRATION – Application for summary dismissal – where it is alleged that the application discloses no reasonable cause of action and/or is frivolous or vexatious or an abuse of process – where the applicant does not appear.

Federal Magistrates Court Rules 2001, Rules 13.10, 13.11

Dey v Victorian Railways Commissioners 78 CLR 62 (1948-1949)

Applicant:

APPLICANT M55 OF 2002

First Respondent:

Second Respondent:

MIINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

MLG995 of 2005

Judgment of:

McInnis FM

Hearing date:

28 October 2005

Delivered at:

Melbourne

Delivered on:

28 October 2005

REPRESENTATION

Applicant:

No Appearance

Solicitor for the Respondents:

Mr M Brereton

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,800.00.
No further application by the applicant for review of the decision of the second respondent dated 14 March 2002 shall be accepted for filing, except by leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG995 of 2005

APPLICANT M55 OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter by notice of motion, filed 10 October 2005, supported by an affidavit, sworn by Emily Jane Nance on 7 October 2005, and further supported by an outline of submissions of the first respondent, filed 19 October 2005, the first respondent seeks an order that the application be dismissed summarily on the grounds that it either discloses no reasonable cause of action and/or is frivolous or vexatious or an abuse of process.

First respondent’s submissions

In support of the application for summary dismissal the respondents submitted that the application should be dismissed because:-
·The Applicant appears to be seeking an appeal from the previous decisions of the Federal Magistrates Court and Federal Court and as such the Application is incompetent.
·To the extent that the Applicant is seeking review of the decision of the second respondent the Applicant is barred by the doctrines of Res Judicata and Estoppel.
·The Application is an abuse of process; and
·The Application has no reasonable prospect of success.
By way of background it is noted from the affidavit of Ms Nance that the applicant in the proceeding is a citizen of Sri Lanka who arrived in Australia on 9 July 1997 on a student visa. He lodged an application for a protection visa on 1 May 1998. On 31 December 1998 a delegate of the first respondent refused the application for a protection visa. The application applied to the Refugee Review Tribunal (“the RRT”) on

15 January 1999. In a decision made on 14 March 2002 the RRT affirmed the decision not to grant a protection visa. The applicant then sought relief by an application for orders nisi for constitutional writs on 3 May 2002 in the High Court of Australia. The matter was remitted to the Federal Court and then transferred to the Federal Magistrates Court. By order of the Federal Magistrates Court on 7 November 2003 the applicant’s application to review the decision of the RRT was dismissed with costs. The applicant appealed from the judgment of the Federal Magistrates Court on 27 November 2003 and that appeal was dismissed by the Federal Court on 25 February 2005. the applicant then lodged an application for an order to show cause in the High Court of Australia on 17 March 2005 and by consent that matter was remitted to this court.
The respondent submits that the substance to the applicant’s current claim has been “squarely dealt with by the courts” and that the applicant is therefore prevented by the doctrine of res judicata from re-agitating his claim. Specifically the respondent submits the following:-
6 To the extent that the Applicant is making a new application for judicial review, the Applicant claims that the Second Respondent did not provide a copy of his passport to him and request any comment in writing. This claim was squarely raised in proceeding MLG 1222 and expressly rejected by her Honour (at [40] – [42], [51]. On appeal, Justice Gray took a different view as to why the passport was excepted by the terms of s.424A of the Migration Act 1958 (the Act) but none the less, still came to the view that it was excepted and there was no obligation on the Second Respondents to request any comments in writing. His Honour expressly found that the Second Respondent did not contravene s.424A and did not deny the Applicant procedural fairness (at [24] – [27]).
Reference was made to relevant authorities by the respondent.
In relation to abuse of process the first respondent made the following submission;-
10 In any event, the Respondent submits that this proceeding should be dismissed as the application is an abuser of process. The Applicant has already litigated in respect of the decision of the Second Respondent. The present application is in largely identical to the terms of the previous application, which has been dealt with by the Court. There have been an increasing number of such repeat applicants before the Court and it has been held that this is not the correct use of Court processes (see for example Applicant M59 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1507 (22 October 2004) per Merkel J and MZWKF (supra)).
11 The Respondent submits that the present application is an attempt by the Applicant to avoid the legal consequences arising from orders previously made and the Applicant is now seeking yet another review of the same decision. The Applicant has not identified any error in the decision, nor has the Applicant particularised his claims. In any event the ground of the claim has already been rejected by the Courts. It is submitted that the Court should be satisfied that the present proceedings are an abuse of process.
Having read the outline of submission made for and on behalf of the first respondent in relation to the application for summary dismissal and the material before the Court, including the affidavit of Ms Nance it is clear to me in applying the appropriate principles which this Court should apply in relation to summary dismissal that this is a clear case where it is appropriate for the Court to make the orders sought for and on behalf of the first respondent. I accept that the submissions made for and on behalf of the first respondent incorporated in this decision are substantially correct and provide an appropriate basis upon which the Court should exercise its discretion to summarily dismiss the application pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (“the Rules”).
The Court is mindful of the fact that summary dismissal is a significant step to be taken by a court. In Dey v Victorian Railways Commissioners 78 CLR 62 (1948-1949) the High Court said at 91:
The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
The orders of the Court are:
(1)The application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
(2)The Applicant shall pay the First Respondent's costs fixed in the sum of $2,800.00.
(3)No further application by the applicant for review of the decision of the second respondent, dated 14 March 2002, shall be accepted for filing, except by leave of the Court.
I have made the third order, based upon my assessment of the material before me which will be self-evident from the submissions incorporated in this decision and from the affidavit of Ms Nance that, in my view, there is sufficient material for this Court to be satisfied that in this instance the person has instituted a vexatious proceeding, and to be further satisfied pursuant to Rule 13.11 of the Rules that the person has habitually and persistently, without reasonable grounds, instituted other vexatious proceedings in this Court or any other Australian court, and on that basis I am satisfied it is appropriate to make the third order.
I should further add that when the matter was called on for hearing this day there was no appearance for the applicant. I am satisfied from correspondence, which I shall direct remains on the file, from the respondent's solicitors dated 14 and 19 October 2005, that the applicant has received adequate notice of the hearing this day. I further note that within seven days of the date of this order the first respondent's solicitors will file an affidavit of service, together with an affidavit deposing to telephone conversations between the first respondent's lawyers and the applicant recently indicating the importance of the applicant's attendance at court this day.
Those matters satisfy me that the notice of motion has been properly served and that the applicant has been given appropriate notice of this hearing. I am not minded to simply dismiss the applicant's substantive application for non-appearance as there is before the Court the notice of motion and it is appropriate to make the orders I have made in accordance with that notice of motion for summary dismissal, and the further order arising out of my finding that the applicant can properly be regarded under the rules as a vexatious litigant.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 28 October 2005