NAHR v Minister for Immigration - [2005] FMCA 1949

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHR v MINISTER FOR IMMIGRATION

[2005] FMCA 1949

MIGRATION – Delegate’s decision refusing protection visa – application for judicial review – previous merits and judicial review applications – application dismissed as abuse of process.

Acts Interpretation Act 1901 (Cth) s.8
Federal Magistrates Court Rule 13.10(c)
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.483A
Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41

NAHR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 318
NAHR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1295
NAHR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1193
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119
SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844

Applicant:

NAHR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3040 of 2005

Delivered on:

23 December 2005

Delivered at:

Sydney

Hearing date:

23 December 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person.

Counsel for the Respondent:

Ms Hanstein

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the respondent’s costs on an indemnity basis in the sum of $1,700.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 19 December 2002 reference N01/36993 or for review of the decision of the delegate of the respondent dated 3 January 2001 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3040 of 2005

NAHR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this matter invokes this Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) and s.39B of the Judiciary Act 1901 (Cth). It seeks orders by way of judicial review in relation to a decision of a delegate of the Minister made on 3 January 2001, which refused to grant a protection visa to the applicant. He lodged his visa application on 15 November 2001, shortly after arriving from Bangladesh.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuation of these proceedings (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s 8).
The application was given a first Court date on 22 November 2005, and on that occasion I gave directions for the hearing of an interlocutory application which the Minister foreshadowed. I am satisfied that the motion and the documents in support have been served on the applicant in sufficient time for him to prepare for today's hearing. He has filed the written submission to which I shall refer below.
The Minister's interlocutory application seeks the summary dismissal of the proceedings under Federal Magistrates Court Rule 13.10. I propose to consider the matter by reference to rule 13.10(c), and to consider whether the bringing and continuance of the application would be an abuse of the process of the Court. I shall consider the significance of the history of litigation engaged in by the applicant in relation to decision-making on his protection visa application, and whether the present application is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119 at [61]).
The history of the applicant's litigation is narrated in an affidavit of Ishan Fuad Muthalib affirmed on 30 November 2005 and the annexed documents.
There is no doubt that the applicant received actual notice of the decision of the delegate, since he lodged an application for review by the Refugee Review Tribunal within the mandatory time.
The Tribunal sent the applicant a series of invitations to attend hearings, and gave at least one adjournment on his request on the basis of a medical certificate. However, the applicant did not attend a further notified hearing date, and no explanation was ever received by the Tribunal. It therefore assessed his claims on the materials before it. It said that in the absence of support from the applicant at the hearing, it was not able to be satisfied that his claims were true. Its decision was handed down on 19 December 2002.
On 7 January 2003 the applicant filed an application for judicial review of the Tribunal's decision in the Federal Court. This was transferred to this Court, and came on for hearing before Raphael FM on 24 July 2003. The applicant appeared and presented a document by way of submissions, which his Honour said:
Only rehearses his claims for asylum, it does nothing to indicate why he believes the Tribunal made a jurisdictional error.
Raphael FM accepted a submission by the Minister’s counsel that none of the grounds of review referred to in the application had been particularised or pressed by the applicant, and dismissed the application. His judgment was given on 24 July 2003 (see NAHR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 318).
On 6 August 2003, the application appealed to the Federal Court, where it was listed for hearing before Bennett J on 8 October 2003. On 17 November 2003, she dismissed the appeal and published her judgment (see NAHR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1295).
In her reasons, Bennett J explained why an application for an adjournment was refused. She then addressed grounds of appeal filed by the applicant, and generally reviewed the decision of the Tribunal and the judgment of Raphael FM. She found no grounds of jurisdictional error in the former, and said:
No error in the Tribunal's decision or in the judgment of Raphael FM is apparent to me.
She agreed with a submission that the claim of jurisdictional error could not be sustained.
On 12 December 2003 the applicant filed in the High Court of Australia an application for special leave to appeal, adopting a common form having no bearing on the matter. That application was deemed abandoned on 15 June 2004.
The applicant then filed a second application for leave on 14 July 2004. This also was deemed abandoned by the High Court on 14 January 2005.
The applicant thereupon brought a second proceeding in this Court by filing on 20 May 2005 a second application seeking orders by way of judicial review of the Tribunal's decision. It used a commonly seen list of heads of jurisdictional error, without showing any thought relating to the particular matter.
On 31 August 2005, Lloyd-Jones FM published a judgment dismissing the application as incompetent (see NAHR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1193). His Honour upheld a notice of objection to competency invoking the time limit under s.477(1A), on the basis that the previous litigation had determined that the Tribunal's decision was a privative clause decision.
Lloyd-Jones FM gave a direction:
That no further application by this applicant to review the decision of the Refugee Review Tribunal made on the 27 November 2001 and handed down on 19 December 2001 is to be accepted for filing without leave of the Court.
With the apparent purpose to get around that direction, the applicant has availed himself of a form of application which has been circulating in recent times, and which I have addressed in many previous decisions. It seeks orders by way of judicial review, not in relation to the Tribunal's decision, but of the previous decision of the delegate.
I have addressed the general nature of the application in SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549, and it not necessary for me again to analyse it, nor to explain why in my opinion it is plainly an abuse of process for the application to be brought and continued in circumstances such as the present.
Wilcox J upheld my judgment (see SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844). When upholding another judgment in a similar matter, Wilcox J said:
The appeal would enjoy no prospect of success because it is obvious that the delegate's decision is now of no significance, having regard to the fact that the delegate's decision was reviewed by the Tribunal. There would be no possibility of any court, in the exercise of its discretion, intervening to set aside the delegate's decision. (see SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821 at [8])
The applicant's written submission in response to the Minister's application consists of a repetition of his factual claims to refugee status, and concludes with the submission:
The appeal be allowed and the matter redirected to RRT for further consideration.
The applicant, in his oral submissions to me today, has made the same request. When I inquired whether he understood the nature of the application which in fact had been filed, he indicated that he was unaware that it challenged, not the Tribunal's decision, but the delegate's decision, and said that the document had not been read to him. He explained that his reason for coming repeatedly to the Court was that he wished to remain in Australia.
It is plain to me that the applicant's history of litigation shows that he brings applications to Courts without any concern at all as to their merits or effect, and for the predominant purpose of engaging in protracted litigation for the collateral purpose of obtaining bridging visas whose entitlement depends upon the continuance of judicial review proceedings regardless of their merits.
In all the circumstances, it is appropriate to make the order for summary dismissal sought by the Minister. I also propose to extend the direction given by Lloyd-Jones FM, which now unfortunately appears to have been drafted too narrowly.
I consider that the circumstances justify an order for costs on an indemnity basis.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 9 January 2005