NATF v Minister for Immigration
[2006] FMCA 518
•7 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NATF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 518 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause application filed out of time – five prior proceedings in respect of the same decision – current application frivolous vexatious and an abuse of process. |
| Migration Act 1958 (Cth), s.477 Migration Litigation Reform Act 2005 (Cth) |
| Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 |
| Applicant: | NATF |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG689 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 7 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Palmer Clayton Utz |
INTERLOCUTORY ORDERS
The application filed on 7 March 2006 is dismissed for want of jurisdiction.
The Court declares that the application is frivolous, vexatious and an abuse of process.
The Court declares that any further application by this applicant in respect of the decision of the Refugee Review Tribunal made on 17 June 2003 would be outside the jurisdiction of this Court, pursuant to the Migration Act 1958 (Cth).
The Court directs that no further application by this applicant under the Migration Act 1958 (Cth) in respect of the decision of the Refugee Review Tribunal or the decision of the Minister’s delegate that preceded it be accepted for filing in this Court, except by leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG689 of 2006
| NATF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The application states that the RRT decision was made on 17 June 2003 and notified to the applicant on 24 June 2003. The effect of s.477 of the Migration Act 1958 (Cth) (“the Migration Act”) as it applies on and from 1 December 2005, when read with item 42 of part 2 of schedule 1 to the Migration Litigation Reform Act 2005 (Cth), is that the applicant is taken to have been notified of the RRT decision on 1 December 2005. He then had 28 days to file his application. He had 84 days to make any application for an extension of time. The present application was filed on 7 March 2006, that is more than 84 days after 1 December 2005.
It follows, and I find, that the application is out of time and the court has no jurisdiction to consider the application for an extension of time. I cannot entertain the application any further. Nevertheless, the Minister seeks orders dismissing the application as frivolous, vexatious and an abuse of process and also seeks an order declaring the applicant to be a vexatious litigant, pursuant to rule 13.11(3) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”.
The Minister relies upon the affidavit of Ellie Jane Palmer made on 3 April 2006 and written submissions filed on behalf of the Minister on 4 April 2006. The relevant factual background is adequately summarised in paragraphs 2 to 5 of those written submissions. I adopt the following for the purposes of this judgment:
a)on 9 July 2003, the applicant commenced proceedings NSD 814 of 2003 in the Federal Court of Australia, in which he sought review of a decision of the RRT made on 17 June 2003 (the "RRT’s decision"). Those proceedings were dismissed by his Honour Gyles J on 6 February 2004;
b)on 25 February 2004, the applicant appealed to the Full Federal Court of Australia against the decision of his Honour Justice Gyles (the "Full Federal Court proceedings"). On 13 August 2004, their Honours Beaumont, Merkel and Hely dismissed the appeal;
c)on 2 September 2004, the applicant filed an application for special leave to appeal in the High Court of Australia (the "High Court proceedings") and on 21 April 2005, that application was dismissed by their Honours McHugh and Heydon JJ;
d)on 19 May 2005, the applicant filed an application for review in the Federal Magistrates Court in the ACT Registry. Those proceedings were dismissed by his Honour Mowbray FM on 9 August 2005;
e)on 24 August 2005, the applicant filed an application for leave to appeal against the judgment of Federal Magistrate Mowbray. That application was dismissed on 13 February 2006 by his Honour Moore J; and
f)these proceedings will collectively be referred to as the prior proceedings.
g)on 7 March 2006, the applicant commenced the present proceedings, proceedings SYG689 of 2006, in the Federal Magistrates Court, New South Wales Registry in which he again seeks review of the RRT’s decision.
It is an abuse of this Honourable Court's process for the applicant to attempt to reagitate:
a)the decision of Justice Gyles;
b)the decision of Justices Beaumont, Merkel and Hely,
c)the decision of Justices McHugh and Heydon;
d)the decision of Federal Magistrate Mowbray; and
e)the decision of Justice Moore.
In the present proceedings, the applicant pleads the following grounds:
1)that the Refugee Review Tribunal failed to accord the natural justice to me;
2)that the Refugee Review Tribunal made error of law being jurisdictional error in that it identified the wrong issue and/or relied on irrelevant material and/or ignored relevant material; and
3)that the Refugee Review Tribunal failed to exercise its jurisdiction under Migration Act and/or acted in excess of its jurisdiction.
The grounds of review in these proceedings are the same, or substantially the same, as those in the prior proceedings. Consequently, these proceedings offend the doctrine of res judicata. To the extent that these proceedings raise any grounds of review not raised in the prior proceedings, the applicant should be estopped from raising those grounds (Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589).
I agree with the Minister's submission that the present application is frivolous, vexatious and an abuse of process. The applicant has previously conducted five proceedings in this Court, the Federal Court and the High Court in respect of the same decision. It is impossible to accept that he has any genuine belief that he could in further proceedings obtain a different result. The Minister should not be constantly vexed by applications of this nature.
It is, however, premature to declare the applicant a vexatious litigant pursuant to rule 13.11(3) of the Federal Magistrates Court Rules. None of the earlier proceedings were declared vexatious by the judicial officers who dealt with them. The present application plainly is vexatious. The applicant should be left in no doubt that if he persists in making applications in respect of the same decision, he places himself at serious risk of being declared a vexatious litigant. The consequence of such an order would be that the applicant would be unable to institute any proceedings in the Court against the Minister without leave.
I will order that the application filed on 7 March 2006 is dismissed for want of jurisdiction. The Court declares that the application is frivolous, vexatious and an abuse of process and the Court declares that any further application by this applicant in respect of the decision of the RRT made on 17 June 2003 would be outside the jurisdiction of this Court, pursuant to the Migration Act. The Court directs that no further application by this applicant under the Migration Act in respect of the decision of the RRT or the decision of the Minister's delegate that preceded it be accepted for filing in this Court, except by leave of the Court.
The Minister seeks an order for costs on an indemnity basis. As I have found an abuse of process, it is appropriate that the Minister should be recompensed on that basis. Under the Court's scale of costs, the Minister would be entitled to receive $1,000. In addition, I accept that the Minister has incurred disbursements of approximately $200 including a filing fee for the Minister's application for summary dismissal. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,200.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 April 2006
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