MZXJX v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXKW v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1729

MIGRATION – Protection visa – whether jurisdictional error –– whether Court has inherent power to declare Applicant vexatious and prohibit further applications without leave – whether indemnity costs apply – whether Court has power to make vexatious litigant order of Applicant out of time in breach of s.477.

PRACTICE AND PROCEDURE – Summary dismissal – whether time limit pursuant to s.477 of Migration Act applies – whether doctrines of res judicata or issue estoppel apply – non-appearance by Applicant – claim in facsimile message of ill-health – insufficient material for adjournment – previous history of adjournment – vexatious litigant – Rule 13.11 Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, rr.13.10, 13.11, 44.12
Migration Act 1958, s.477
Migration Litigation Reform Act 2005

Applicant M294 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Ors Federal Court of Australia V261 of 2004 (unreported)

Applicant:

MZXKW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 809 of 2006

Judgment of:

McInnis FM

Hearing date:

13 November 2006

Delivered at:

Melbourne

Delivered on:

13 November 2006

REPRESENTATION

Applicant:

No Appearance

Counsel for the First Respondent:

Mr M.J. Brereton

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

That the application be summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (the Rules).
That pursuant to Rule 31.11 of the Federal Magistrates Court Rules 2001 the Applicant shall not institute any proceedings seeking judicial review of the decision of the Refugee Review Tribunal dated

7 November 2003 without the leave of the court.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 809 of 2006

MZXKW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter the Applicant has, by an application filed 26 June 2006, sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 7 November 2003. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. It will be evident from the chronology of events to which reference will be made presently that it is not necessary in this application to recite in detail further background concerning the application for a protection visa.
Before the court this day is a Notice of Motion, which I deem to be an application for the purpose of the Rules, filed on 4 August 2006 by the First Respondent. That application seeks a dismissal of this application and does so on the basis that:
a)the court does not have jurisdiction to determine the application for review because it was filed outside the time limit prescribed by s.477 of the Migration Act 1958 (the Migration Act) and/or;
b)the proceeding is barred by the doctrines of res judicata and issue estoppel and/or;
c)the application does not raise an arguable case for the relief claimed in accordance with r.44.12 of the Rules and/or;
d)the application discloses no reasonable cause of action and/or it is frivolous or vexatious in accordance with r.13.10 of the Rules.
The application of the First Respondent, which I take to effectively be an application for summary dismissal, is supported by an Affidavit of Kathryn Elizabeth Miller sworn 4 August 2006, which sets out the relevant chronology of events and previous decisions of other courts in relation to this Applicant. The First Respondent also relies upon an Outline of Submissions dated 4 August 2006, which again sets out relevant background and otherwise provides submissions in support of the application for dismissal upon the grounds to which I have just referred.
The history in this matter is important and shall be referred to presently. However, it is noted that when the matter was called on for hearing this day there was no appearance for the Applicant.

An affidavit sworn by Michael John Brereton on 10 November 2006 notes that this matter had been listed before a Registrar of this court on 9 August 2006 when the Registrar on that occasion made orders that the application be listed for summary dismissal this day.
I note from the affidavit of Mr Brereton that the Applicant attended that directions hearing and that the Applicant was handed a copy of the notice of motion and the Affidavit and exhibits from the Affidavit of Kathryn Elizabeth Miller to which I have referred earlier.
I am satisfied in the circumstances that the Applicant has had adequate notice of the hearing this day as a result of the affidavit material to which I have referred. It is assumed, although the file record is not clear, that the order made by the Registrar on 9 August 2006 was also forwarded to the Applicant at the Applicant's address for service.
The history in this matter is set out appropriately in the Outline of Submissions relied upon by the First Respondent, based as it is upon the Affidavit material to which I have referred. As I have indicated it was noted at the outset of this hearing that the Applicant did not appear. I indicated, based upon the material before the court, that I would not permit the application to be adjourned but would instead deal with the substantive matter before the court, namely the application for summary dismissal, albeit in the absence of the Applicant, and that it was preferable, for reasons which will become apparent, to deal with the matter in that way.
The court was concerned that the only document provided purportedly by the Applicant was a facsimile transmission dated 13 November 2006, which, as I indicate, purports to be from the Applicant.

The document at least appears to bear the Applicant's name and address and was forwarded by facsimile transmission at 8.37am this day addressed to a Registrar of this court. The facsimile transmission states,
“My case is fixed for summary hearing on 13-11-2006 at 9.30 am. Unfortunately I have a serious diarrhoea and stomach upset.

I have an appointment with the Doctor in the morning, so I will not be able to attend the hearing. So I am faxing this letter to you.”
In considering the application for adjournment the court is entitled to have regard to the chronology of events to which I shall refer presently. But it will be noted from that chronology of events that the same Applicant in a similar application seeking judicial review of the same tribunal decision on other occasions has not appeared before courts.
By way of example that on 12 May 2004 the Applicant was before Her Honour Kenny J. Her Honour noted in that case, (Applicant M294 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Ors) Federal Court of Australia V261 of 2004 (unreported) the following,
“The applicant is unrepresented. As already noted, he has not appeared at the hearing of this application.”
Her Honour goes on to state,
“… the court received a facsimile message from the applicant stating that he ‘would not be able to attend the court because [he is] very sick” and that he is ‘very sorry for the inconvenience’”.
Her Honour then states:
“He also sought another date for the hearing. The respondent opposed any adjournment. If this facsimile message is to be regarded as an application for an adjournment, it should be refused. In the circumstances, bearing in mind the matters deposed to by Mr Wee and notwithstanding the applicant's facsimile message, it is appropriate to hear and determine the application before The Court this afternoon.”
I also note in the other proceedings the matter had been the subject of a decision of the Federal Magistrates Court on 30 November 2004 when an application was dismissed and there was no appearance for the Applicant. It is not clear from the court's decision on that occasion whether any request for an adjournment was made or any facsimile transmission received.
In any event the orders of the court on that day were then the subject of an appeal. The appeal was heard and determined by Ryan J of the Federal Court on 1 April 2005. It is noteworthy that in that decision His Honour states,
“There has been no appearance for or by the appellant today but he sent a facsimile message to the solicitor for the respondent which recites:
‘I am very sorry to inform you that I am not feeling well today. I went to the doctors yesterday and I have enclosed a receipt of invoice for your kind information. I am suffering from fever and a sore throat. Sorry for the inconvenience. Please accept my sincere apology.’”
His Honour notes on that occasion annexed to the message was a copy of an invoice and receipt rendered apparently to the Applicant by the Cheltenham Medical Centre in respect of a consultation on 31 March 2005. His Honour then goes on to state,
“It is by no means clear whether that message was intended to support an application for an adjournment of today’s appeal, but, even if it were to be so treated, I am not disposed to grant an adjournment. This is not the first time that this appellant has failed to appear when proceedings instituted by him have been brought on for hearing. At the hearing before Kenny J in this Court on 12 May 2004, to which I shall refer later, he did not appear …”
His Honour in that case, for reasons published referred to the Kenny J comments. It is noteworthy, however, that after referring to the comments of Kenny J His Honour Ryan J then also refers to the hearing before the Federal Magistrates Court and goes on to state:
“For reasons substantially identical with those indicated by Kenny J I consider that, if an intention to apply for an adjournment can be imputed to the appellant, that application should be refused and the appeal should be heard and determined today.”
This court has not been given the benefit of any additional annexure but rather has simply received the facsimile message to which I referred earlier. Again, as with the other courts, if this court is required to perhaps infer that this Applicant has sought an adjournment for the same reasons which were given by the other courts, which to some extent had perhaps additional information, I am not disposed to grant any adjournment, assuming by inference that an adjournment is sought. I do not regard it as being in the interests of justice to further adjourn this application. I make that decision based upon the lack of any, or any adequate evidence, supporting an adjournment application even if I were prepared to infer that the facsimile transmission to which I have referred should be taken to be an application for an adjournment.
I am strengthened in that conclusion by the further conclusion I also reach, for reasons which will become evident, that this application is a clear example, in my view, of an abuse of process. It is a vexatious and frivolous application which I accept is barred by the operation of the doctrine of res judicata and/or issue estoppel and/or to the extent that may be necessary Anshun estoppel.
I am further satisfied, for reasons which will become apparent, that in any event it is appropriate to conclude that the submissions made for and on behalf of the First Respondent in relation to the application of s.477(1) of the Migration Act applies so that the court is not competent and does not have jurisdiction to hear and determine the application.
That, of course, is the first finding that is made. The other findings in relation to abuse of process, whether the application is frivolous or vexatious and/or whether res judicata, issue estoppel or Anshun estoppel apply are conclusions to be reached in the alternative in the event that the court is incorrect in its application of s.477(1) of the Migration Act.
It is appropriate, before dealing with the grounds relied upon by the First Respondent, to note the chronology of events in this matter.

On 27 January 1997 the Applicant arrived in Australia. The Applicant then applied for a protection visa on 15 March 2002 that is some five years after arriving in Australia. A delegate on 28 June 2002 refused to grant a protection visa to the Applicant, who then applied to the Tribunal for review of the delegate's decision.
The application to the Tribunal was made on 25 July 2002.

As indicated earlier a decision was made by the Tribunal on

7 November 2003 affirming the decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
On 11 December 2003 the Applicant commenced High Court proceedings (number M294 of 2003) by filing an application for an order nisi for writs of prohibition and certiorari in relation to the Tribunal's decision. On 6 February 2004 the High Court ordered that the application be remitted to the Federal Court where it was allocated for proceeding number V261 of 2004. On 12 May 2004, as indicated earlier in this judgment, Her Honour Kenny J dismissed the application.
On 18 June 2004 the Applicant then commenced proceedings in the Federal Magistrates Court (in application MLG 794 of 2004) by filing an application for review of the Tribunal's decision. On 30 November 2004 the Federal Magistrates Court conducted a hearing and, as noted earlier, the Applicant did not appear. The court on that occasion dismissed the application. It is perhaps noteworthy that on that occasion the court, apart from dismissing the application and making an order for costs made a further order as follows:
“3.The applicant not commence further proceedings in relation to the Refugee Review Tribunal decision without leave of the Court.”
It is assumed that that further order was intended to refer to the Refugee Review Tribunal decision of 7 November 2003 and indeed, by inference, the application for a protection visa considered by that tribunal. It is not readily apparent from the order, however, that it was made pursuant to the Rules. In particular, it is not evident that it was made pursuant to r.13.11 which provides for orders of that kind to be made pursuant to the Federal Magistrates Court Rules 2001 (the Rules). Rule 13.11 provides as follows -
“(1)If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that 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 different persons), the Court may order:
(a)that any proceeding instituted by the person may not be continued without leave of the Court; and
(b)that the person may not institute a proceeding without leave of the Court.
(2) An order under subrule (1) may be made:
(a) on the Court's own motion; or
(b)on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or
(c) on the application of the Registrar.
(3)If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:
(a)that any proceeding instituted by the vexatious litigant against the person aggrieved may not be continued without the leave of the Court; and
(b)that the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.
(4)A person seeking an order under this rule must file an application.
(5)The Court may rescind or vary any order made under this rule.
(6)The Court must not give a person against whom an order is made under this rule leave to institute or continue any proceeding unless the Court is satisfied that the proceeding is not an abuse of process and that there is prima facie ground for the proceeding.”
In any event after orders were made by the Federal Magistrates Court on 30 November 2004 it appears that the Applicant then, on 16 December 2004, sought to appeal from the decision of the Federal Magistrates Court. On 1 April 2005 the appeal from the Federal Magistrates Court order was dismissed by Ryan J. As noted earlier in this decision the Applicant did not appear before Ryan J on 1 April 2005 when His Honour dismissed the appeal.
On 28 April 2005 the Applicant commenced High Court proceedings in application M39 of 2005 by filing an application for special leave to appeal the decision of the Honourable Ryan J dated 1 April 2005.

On 6 October 2005 Gummow and Kirby JJ refused the application for special leave to appeal. On 26 June 2006 the Applicant commenced the application before this court, that is, the current application, and did so without seeking leave of the court which was purportedly required pursuant to the orders made by the Federal Magistrates Court on 30 November 2004.
I should at this stage pause to reflect upon the power purportedly exercised by the court in making the order set out above on 30 November 2004. As indicated, it is not clear that that order was made pursuant to the rules. I am prepared to infer for the present purposes that the order was made without power. It is not an inherent power of this court to make an order of that kind though there is specific power to which I shall refer presently which may be exercised pursuant to r.13.11 set out above.
In any event, no point is taken in a formal sense as to whether or not the current application by the Applicant before this court was issued inappropriately and is therefore invalid as it is contrary to the order made by the court on 30 November 2004, the Applicant not having sought leave.
The First Respondent has submitted that in this instance the court should have regard to the fact that the application for review was filed after the commencement of the Migration Litigation Reform Act 2005 which inserted a new Part 8 into the Migration Act. It was submitted, and I accept, that the new Part 8 applies to the current application.
I accept, as submitted by the First Respondent, that s.477(1) of the Migration Act applies, as amended requires that an application for review be filed within 28 days of actual notification of the decision.

It is noted that an Applicant may seek an order extending the time limit by up to 56 days. Subsection 477(2) empowers the court to make an order extending the time limit only if the person seeking the extension has sought the order within 84 days of actual notification of the decision and the court is satisfied that it is in the interests of the administration of justice to extend the time limit.
In this instance it is submitted by the First Respondent, and I accept, that since the Tribunal's decision was made prior to 1 December 2005 the Applicant is deemed to have been actually notified of the Tribunal decision on 1 December 2005 (see schedule 1 item 42 of the Migration Litigation Reform Act 2005). It is submitted that the time for filing an application for review in this instance therefore expired on 29 December 2005 and further, the time for applying for any order to extend the time limit expired on 23 February 2006.
In this case the application was filed, as indicated earlier, on 26 June 2006, some four months after the 84 day time limit expired. It is submitted by the First Respondent, and I accept, that the court therefore does not have jurisdiction to extend time for the filing of the application for review or to determine the application for review.

Accordingly, it follows on that reasoning that in this instance the court does not have jurisdiction to hear and determine the application and is indeed not competent to hear and determine the application. On that basis it follows that the orders sought by the First Respondent that the application be dismissed should be granted on that ground alone.
That leaves open the question of whether or not a court not having jurisdiction and having found the court is effectively not competent by reason of the application of s.477(1) of the Migration Act can still of its own motion in a matter of this kind make a further order, albeit one not sought by the First Respondent, pursuant to r.13.11 of the Rules.
In my view an order made pursuant to that rule is still open to this court, albeit the court has found that it does not have jurisdiction and that the application is not competent by reason of the application of s.477(1) of the Migration Act.
In my view an order made under r.13.11 of the Rules in circumstances where the court has found that it does not have jurisdiction for the reasons stated is similar to the power the court has to make an order for costs, having likewise still found that the court does not have jurisdiction to hear and entertain the application.
It would be, in my view, inappropriate to conclude in a matter of this kind that having determined the court does not have jurisdiction as a result of the time limit to then fail to at least consider, having regard to the chronology of events in this matter, the application of r.13.11 of the Rules.
Before considering the application of that rule, it is appropriate to also consider, in the event that I am in error in applying s.477(1) of the Migration Act whether or not res judicata should apply to the present application and then whether, in the alternatively, issue estoppel or Anshun estoppel applies.
As I have indicated, I accept that having regard to the chronology of events and the proceedings which have occurred in other courts that res judicata clearly applies in this application. It applies, I accept, as submitted by the First Respondent, due to the orders made by Kenny J on 12 May 2004 dismissing the application before that court and the orders made subsequently by the Federal Magistrates Court on 30 November 2004 likewise dismissing the application for judicial review of the same tribunal decision.
It is noted that decision of the Federal Magistrates Court was effectively affirmed on appeal before Ryan J on 1 April 2005 when His Honour then dismissed the Applicant's appeal. I accept the cause of action which is revealed in the decisions to which I have referred earlier in this application is in substance the same cause of action that was before Kenny J and the Federal Magistrates Court.
In those circumstances it is clear to me that the doctrine of res judicata applies. In the alternative I accept, as submitted by the First Respondent, that issue estoppel and/or Anshun estoppel likewise apply. It is not necessary for the court then to consider whether or not the Applicant has an arguable case, which I note was also referred to in the First Respondent's submissions.
I am satisfied, having regard to the chronology of events however, that this application could properly be regarded as an application which is frivolous and/or vexatious. I likewise form the view that the application before the Federal Magistrates Court on the previous occasion could properly be regarded as frivolous and/or vexatious. It is clear to me that this is the second occasion upon which the Applicant has made an application in this court and has done so against the backdrop of careful consideration by the courts of substantially the same applications and in most instances consideration of cases where the Applicant has not appeared before the courts.
That raises then the question of whether or not this court has power to make an order of its own motion pursuant to r.13.11 of the Rules.

In my view, having regard to the chronology of events which I have described and in particular the proceedings before Kenny J and previously before this court, that I am entitled to be satisfied that the Applicant has instituted a vexatious proceeding.
I am satisfied in this instance that the Applicant has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in this court, namely the proceedings which are current, which were before the Federal Magistrates Court on the previous occasion, and having regard to the proceedings before Kenny J. It is my view that it is appropriate in exercise of the court's discretion on its own motion to order that any proceedings to be instituted by the Applicant may not be instituted without leave of the court. I make that order specifically pursuant to r.13.11 of the Rules.
I should further indicate that in an application of this kind in my view, although in this instance the First Respondent has sought costs in the sum of $2,500.00, it may well be appropriate in other similar cases for the court to consider making an order for a higher amount of costs, and indeed indemnity costs, if circumstances arise similar to the circumstances which appear in this case.
Out of an abundance of caution, however, I should also note, though

I will not make a specific order, that any purported application for adjournment by the Applicant is refused. It seems to me inappropriate to make a formal order given that there is no formal application but rather I have simply been prepared to infer that an adjournment application was made on the basis of a facsimile transmission referred to earlier in this judgment.
I direct that the reasons I have just given be transcribed and upon review shall constitute my reasons for judgment in this matter.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 13 November 2006

[2006] FMCA 1729

14 November 2006