NACS of 2001 v Minister for Immigration

[2007] FMCA 302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACS OF 2001 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 302

MIGRATION – Repeat applications to RRT to review decision of delegate and repeat applications for judicial review – whether the applications constitute an abuse of process – whether indemnity costs should be ordered.

Migration Act 1958, s.48B

Applicant: APPLICANT NACS OF 2001

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2878 of 2006

Judgment of: Raphael FM

Hearing date: 26 February 2007

Date of last submission: 26 February 2007

Delivered at: Sydney

Delivered on: 26 February 2007

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. The name of the first respondent be changed to Minister for Immigration and Citizenship. 

3. Applicant to pay the first respondents’ costs on an indemnity basis within 28 days of those costs being advised to him.

4. No further application for review of the decision of the delegate of the first respondent dated 4 February 1998 or any decision of the Refugee Review Tribunal in relation to that decision of the delegate is to be made without further order of this Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2878 of 2006

APPLICANT NACS OF 2001

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me a motion by the first respondent who shall now be called the Minister for Immigration and Citizenship to strike out the application filed in this matter on 9 October 2006 on the grounds that it has no reasonable prospect of success, that it is frivolous or vexatious and that it is an abuse of the processes of this court.

2. I have absolutely no doubt that this application is an abuse of the process of this court.  This applicant, who must be congratulated for his tenacity, was first considered for refugee status upon his arrival in January 1998.  He was unsuccessful.  He then proceeded through the Federal Court, the Full Bench of that court and the High Court to challenge the Tribunal’s decision.  He was unsuccessful.  For reasons known only to the Department, although his application for special leave to appeal to the High Court was dismissed by that court on 2 December 2003, the applicant was allowed to remain in Australia so that he could make yet another application to the Refugee Review Tribunal to review the original decision of the delegate.

3. Rightly, the Tribunal came to the conclusion that it had no jurisdiction to hear the review application and the applicant then proceeded through this court, the Federal Court and then to the High Court to challenge that ruling.  On 13 June 2006 their Honours Gummow ACJ and Hayden J dismissed that application.  Once again the Department allowed the applicant to remain in the country and once again he commenced proceedings in the Refugee Review Tribunal on 28 June 2006.  On 19 September 2006 a senior member of the Tribunal determined that the Tribunal had no jurisdiction to hear the application.  The applicant has now commenced, for the third time, his journey through the Australian court system of which this is but the first and most insignificant stop.

4. The law in relation to multiple reviews of original decisions is clear. The applicant cannot, as he seeks to do before me, pray in aid a changed condition in his country. In order to utilise those circumstances he must make the appropriate application to the Minister under s.48B of the Migration Act 1958.

5. The applicant must be well aware of the futility of his application to the courts because of the previous decisions of those courts, all of which he would have had notice of.  It is therefore unnecessary for me to repeat what other courts have said as to the abuse of process.  Whilst the applicant may be admired for his tenacity and the Department criticised for their inability to find him and deport him so that these multiple applications did not have an opportunity to occur, it is appropriate that the court makes some effort to discourage this type of activity. 

6. The application is dismissed.  The name of the first respondent is to be changed to the Minister for Immigration and Citizenship.  The applicant is to pay the respondents’ costs on an indemnity basis within 28 days of those costs being advised to him, and the court will order that no further application for review of the decision of the delegate of the first respondent dated 4 February 1998 or any decision of the Refugee Review Tribunal in relation to that decision of the delegate be made without further order of this court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: