MZWVG v Minister for Immigration
[2005] FMCA 1384
•14 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWVG v MINISTER FOR IMMIGRATION | [2005] FMCA 1384 |
| MIGRATION – Practice and procedure – dismissal for non-compliance – Rule 13.03(1) – summary dismissal – whether abuse of process – Rule 13.10(c) – vexatious litigant Rule 13.11. |
| Federal Magistrates Court Rules 2001, Rule 13.03(1), 13.10, 13.11 |
| Applicant: | MZWVG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1686 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 14 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 14 September 2005 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms M.D. O'Regan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application for Review of the decision of the Refugee Review Tribunal dated 22 November 2002 refusing to grant the application a Protection Visa (“The Tribunal Decision”):
(a)be dismissed pursuant to Rule 13.03(1) of the Federal Magistrates Court Rules 2001 (“the Rules”) as a result of the Applicant’s failure to comply with orders 2 and 4 of the orders of Registrar Mussett made on 16 February 2005; or in the alternative
(b)be dismissed pursuant to Rule 13.10(c) of the Rules on the ground that a result of:
(i)a previous application by the Applicant for an order of review in relation to the Tribunal Decision, filed in the Federal Court, New South Wales District Registry (proceeding number N28 of 2003), was dismissed by Conti J on 11 April 2003; as a consequence of which;
(ii)
the Applicant filed a Notice of Appeal in the appellate jurisdiction of the Federal Court (proceeding number N537 of 2003), dismissed by Whitlam, Moore and Kiefel JJ on
5 November 2003; as a consequence of which;
(iii)the Applicant filed a special leave application in the High Court (proceeding number S581 of 2003), dismissed by Gleeson CJ, McHugh and Heydon JJ on 14 September 2004; or in the alternative the proceeding is an abuse of the process of the Court.
(c)be dismissed on the ground that the Applicant cannot establish the arguable case necessary to succeed on the Application for Review because the doctrines of res judicata and/or issue estoppel and/or Anshun estoppel preclude the Applicant from raising any of the grounds of judicial review upon which he seeks to rely in support of the application; or in the alternative;
(d)be refused pursuant to Rule 13.10(c) of the Rules as a result of the inordinate delay between the cause of action arising and the Application for Review; and
No further Application by the Applicant to review the Tribunal decision be accepted for filing without the leave of the Court.
The Applicant shall pay the Respondent’s costs on an indemnity basis fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1686 of 2004
| MZWVG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
(As Corrected)
In this matter the Court has to consider a Notice of Motion filed 18 August 2005, which seeks dismissal of an application for review of the decision of the Refugee Review Tribunal (the Tribunal) dated
22 November 2002, which had affirmed a decision of a delegate refusing to grant to the applicant a protection visa.
The notice of motion is supported by an affidavit of Maria Denise O'Regan sworn 18 August 2005. The notice of motion effectively seeks summary dismissal of the application and/or dismissal as a consequence of the failure of the applicants to comply with orders
3 and 4, orders made by a Registrar on 16 February 2005.
It seems to me that on a proper reading of the material each of the orders sought in the notice of motion are appropriate. It is clear to me that in dealing with the orders sought under Rule 13.03(1) of the Federal Magistrates Court Rules 2001 (the Rules) that there has indeed been noncompliance with orders made by the Registrar. Indeed, there has been little provided by way of additional material by the applicants in relation to this matter.
The further grounds relied upon for summary dismissal on the basis that this application is an abuse of process again are made out on the material before me, and in particular I note the affidavit of Ms O'Regan and the chronology of events as follows:-
“3.On 22 November 2002, the Refugee Review Tribunal made a decision to affirm the decision of the respondent's delegate to refuse the applicant a protection visa. The decision was handed down on 18 December 2002 ("Tribunal Decision"). Now produced and shown to me and marked "MOR-1" is a true copy of the decision handed down on 18 December 2002.
4.On 13 January 2003, the applicant filed an Application in the Sydney Registry of the Federal Court to review the Tribunal Decision. That proceeding was allocated proceeding number N28 of 2003 ("Application"). Now produced and shown to me and marked "MOR-2" is a true copy of the Application and affidavit in support dated 13 January 2003.
5.On 11 April 2003, Justice Conti ordered that the Application be dismissed and that the applicant pay the respondent's costs. Now produced and shown to me and marked "MOR-3" is a true copy of the reasons for judgment and orders of Justice Conti.
6.On 1 May 2003, the applicant filed a Notice of Appeal in the Sydney Registry of the Federal Court, appealing the orders and judgment of Justice Conti dated 11 April 2003. That proceeding was allocated proceeding number N537 of 2003. Now produced and shown to me and marked "MOR-4" is a true copy of the Notice of Appeal dated 1 May 2003.
7.On 7 November 2003, the Full Court of the Federal Court constituted by Justices Whitlam, Moore and Kiefel ordered that the Appeal be dismissed. Now produced and shown to me and marked "MOR-5" is a true copy of those reasons for judgment and orders made on 7 November 2003.
8.On 2 December 2003, the applicant filed an Application for Special Leave to Appeal in the Sydney Registry of the High Court. That proceeding was allocated proceeding number S581 of 2003. Now produced and shown to me and marked "MOR-6" is a true copy of the Application dated 2 December 2003.
9.On 14 September 2004, the High Court constituted by Chief Justice Gleeson and Justices McHugh and Heydon ordered that the Application for Special Leave be refused. Now produced and shown to me and marked "MOR-7" is a true copy of the orders made on 14 September 2004.
10.On 23 December 2004, the applicant filed the current Application for review in the Federal Magistrates Court of Australia, Melbourne. The current Application also seeks review of the Tribunal Decision. The address stated in the Application for the service of documents was 5/6 St James Avenue, Springvale, in the State of Victoria ("address for service").
11.By orders dated 16 February 2005, Registrar Mussett ordered a procedural timetable. The procedural orders required the applicant to file and serve an amended application, if any, by 23 March 2005, and contentions of fact and law by 15 April 2005.
12.By letter dated 23 February 2005 and sent by ordinary pre-paid post to the address for service, Clayton Utz sent to the applicant a copy of the orders of Registrar Mussett made on 16 February 2005.
…..
14.On 6 May 2005, two copies of the court book prepared by the respondent were filed with the Federal Magistrates Court. Under cover of a letter of the same date, a copy of the court book was also served on the applicant at the address for service.
….
16.By letter dated 9 May 2005, and sent by ordinary pre‑paid post to the applicant's address for service, Clayton Utz suggested extending the procedural timetable and enclosed proposed minutes of consent orders which so provided.
….
18.By 24 June 2005, the applicant had failed to respond to the letter from Clayton Utz dated 9 May 2005 or to return the proposed minutes of consent orders enclosed therein. On that day, I sent a letter by ordinary pre-paid post to the address for service noting the applicant that the respondent had yet to be served with the applicant's amended application and contentions of fact and law, and asking that they be filed by 1 July 2005.
….
20.At the time of swearing this my affidavit, the applicant has not served an amended application containing proper particulars nor the contentions of fact and law as required by the orders of Registrar Mussett made on 16 February 2005.”
I am otherwise satisfied, having regard to the chronology of events in this matter, which I shall incorporate in this decision, that it is further appropriate to dismiss the application on the grounds that the applicant cannot establish an arguable case necessary to succeed on the grounds that res judicata and/or issue estoppel or Anshun estoppel applies.
To the extent that it may be necessary, it seems to me further appropriate that the application otherwise be refused pursuant to Rule 13.10(c), given the significant delay between the cause of action arising and this application for review being filed.
The only other issue that requires the attention of the court is consideration of whether the court should make an order that the applicants may not issue a proceeding without the leave of the Court pursuant to Rule 13.11 of the Rules. That rule provides for an order of that kind to be made in circumstances where the court is satisfied that a person has instituted a vexatious proceeding and the court is satisfied 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 a different person.
Again relying upon the chronology of events it is clear to me the Court is entitled to be satisfied that in this instance that the applicant has instituted a vexatious proceeding as described in Rule 13.11(1). Having made that finding and having been satisfied of the requirements of the rule, it is in my view appropriate that the court makes an order, contemplated by Rule 13.11(1)(b), that in this instance no further application be made by the applicant to review the Tribunal's decision be accepted for filing without the leave of the court. I shall further order the Applicant pay the costs of the Respondent, fixed in the sum of $4000.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 2 November 2005
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