S1000 of 2003 v Minister for Immigration

[2007] FMCA 377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1000 of 2003 v MINISTER FOR IIMMIGRATION & ANOR [2007] FMCA 377

MIGRATION – Review of Refugee Review Tribunal decision – no reasonable prospect of success – vexatious claim – frivolous claim – claim an abuse of process.

Migration Act 1958 (Cth), ss.416, 420, 424A

S1000 of 2003 v Minister for Immigration [2004] FMCA 963
MIMA v Thiyagarajah (2000) 199 CLR 343
MIMA v Bhardwaj (2002) 209 CLR 397
SZDDG v Minister for Immigration [2004] FMCA 420
Walton v Gardiner (1993) 177 CLR 378
Hunter v The Chief Constable of the West Midlands Police (1982) AC 529

Applicant: APPLICANT S1000 of 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3340 of 2006

Judgment of: Turner FM

Hearing date: 8 March 2007

Date of last submission: 8 March 2007

Delivered at: Sydney

Delivered on: 8 March 2007

REPRESENTATION

The applicant appeared in person.

Solicitor for the First Respondent: Mr Andras Markus (AGS)

ORDERS

1. The application is dismissed.

2. Any proceeding initiated by the applicant in this Court may not be continued without leave of the Court.

3. The applicant may not institute a proceeding in this Court without the leave of the Court.

4. Without prior leave of the Court, the applicant is not to file, and the Registry of the Court is not to accept for filing, any further application for review of:

   (i)

   The decision of the delegate of the first respondent dated

   
   

   12 October 1998;

   (ii)

   The decision of the second respondent Refugee Review Tribunal signed on 20 March 2000 and handed down on

   
   

   4 April 2000;

   (iii)The decision of the second respondent Refugee Review Tribunal signed on 27 October 2006;

   (iv)Any other decision relating to the applicant’s application for a protection visa lodged on 26 August 1998.

5. The Court orders that the application be dismissed generally.

6. The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.00.

7. The name of the first respondent is amended to the Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3340 of 2006

APPLICANT S1000 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Court has before it a Notice of Motion by the first respondent filed on 28 November 2006 that the application filed on 15 November 2006 be dismissed, on one or more of the following bases:

   a)That the claim for relief is an abuse of process of the Court: rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth);

   b)The proceeding or claim for relief is frivolous or vexatious: rule 13.10(b); and/or

   c)The party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim: rule 13.10(a).

2. The first respondent also seeks orders that the Registry not accept for filing any further application for review of:

   a)

   The decision of the delegate of the first respondent dated

   
   

   12 October 1998; or

   b)The decision of the second respondent Refugee Review Tribunal (RRT) made on 20 March 2000 and handed down on 4 April 2000;

   c)The decision of the second respondent Refugee Review Tribunal made on 27 October 2006;

   d)Any other decision relating to the applicant’s application for a protection visa lodged on 26 August 1998;

   without prior leave of the court.

3. The first respondent seeks an order for costs.

4. The Court has on file an affidavit by Andras Markus dated

   
   

   28 November 2006 and filed in support of the Notice of Motion. The Court receives that affidavit as evidence in the proceedings.

5. The relevant history of the proceedings is:

   1)12 October 1998: a delegate of the second respondent refused the applicant’s application for a protection visa.

   2)20 March 2000: the RRT affirmed the decision of the delegate. The applicant filed an application with this Court seeking judicial review of the decision of the RRT on 20 March 2000.

   3)19 August 2004: the Minister for Immigration and Multicultural and Indigenous Affairs applied for summary dismissal of the application asserting that:

   ·the judicial review application discloses no reasonable cause of action

   ·is an abuse of process.

   4)13 December 2004: Federal Magistrate Driver in the decision S1000 of 2003 v Minister for Immigration [2004] FMCA 963 found that

   ·“there is no substance to the present judicial review application” (p.3);

   ·that “the interests of the administration of justice require that the applicant be denied that further opportunity” to agitate these grounds (p.4);

   ·that “the present proceedings are vexatious and an abuse of process”. “I will, on those bases, dismiss the judicial review application.” (p.5).

   His Honour added that “no further application by this applicant to review the decision of the RRT made on 20 March 2000 and handed down on 4 April 2000 be accepted for filing by this Court, except by leave of the Court”.

   5)5 September 2006: the applicant lodged a further application for judicial review of the decision of the delegate, which was already the subject of review by the RRT in the first decision of 20 March 2000 (affidavit of Markus, para 5).

   6)27 October 2006: the RRT decided that it did not have jurisdiction in relation to the applicant’s application, lodged on 5 September 2006 (affidavit of Markus, para 6).

   7)

   15 November 2006: the present application was filed with the Court which seeks a review of the second RRT decision signed on

   
   

   27 October 2006, and certified on 30 October 2006. The RRT decided that:

   As the Tribunal has already discharged its functions under the Act to review the delegate’s decision, the application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision (RRT decision page 4, attached to the affidavit of the applicant, sworn on 15 November 2006).

6. The grounds of the application are:

   1.The Tribunal denied the applicant natural justice, as it was biased or there was a reasonable apprehension of bias;

   2.The Tribunal did not exercise procedural fairness.

   Particulars:

   The applicant was not offered a hearing and s.424A was breached.

   The Tribunal exceeded the jurisdiction or constructively failed to exercise its jurisdiction and did not follow s.416 of the Migration Act 1958.

   3.The Tribunal must have regard to section 420 of the Migration Act.

Findings of the Court

1. The Court finds that the RRT decision sought to be reviewed was made on the basis that:

   As the Tribunal has already discharged its functions under the Act to review the delegate’s decision, the application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision (RRT decision page 4, attached to the affidavit of the applicant, sworn on 15 November 2006).

   The Court finds that the Tribunal was correct in reaching that conclusion.

2. As the Tribunal no longer had jurisdiction in relation to a review of the decision of the delegate, the application was invalid. It is therefore unnecessary for the Court to deal with the grounds of the application. However, the Court finds:

   a)that the applicant was not denied natural justice and no bias or ground for a reasonable apprehension of bias has been shown;

   b)the Tribunal did not breach any requirement to accord procedural fairness.

   c)The applicant alleges a breach of s.416 of the Migration Act which provides:

   If a non-citizen who has made:

   a)an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

   b)applications for reviews of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal;

   makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

   c)is not required to consider any information considered in the earlier application or an earlier application;

   d)may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.

   The relevant effect of the section is that where a person makes an application for review of an RRT-reviewable decision and makes further application/s for review of an RRT-reviewable decision in circumstances allowed by the Act, the Tribunal in considering that further application is not required to consider any information considered in the earlier application and may take to be correct any decision that the Tribunal made about the application. The Court finds that the Tribunal did not breach that section.

   The applicant stated to the Court that his circumstances have changed since 9/11 and he wished to put further submissions before the Tribunal. Changed circumstances do not provide any legal basis for the Tribunal to accept a second review application, or to reconsider the delegate’s decision: see MIMA v Thiyagarajah (2000) 199 CLR 343 at [30], MIMA v Bhardwaj (2002) 209 CLR 397 at [7].

3. The applicant states that the Tribunal must have regard to s.420 or the Migration Act which provides:

   (1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal, and quick.

   (2)The Tribunal, in reviewing a decision:

   a)    is not bound by technicalities, legal forms or rules of evidence; and

   b)    must act according to substantial justice and merits of the case.

   The Court finds that the Tribunal did not breach that section.

4. The Court orders that the application be dismissed.

5. The Court refers to and adopts the reasons for decision contained in para 12 of His Honour Federal Magistrate Driver in S1000 of 2003 v Minister for Immigration [2004] FMCA 963 as follows:

   The issues have been considered in this Court on a number of occasions. I refer, for example, to the decision of Federal Magistrate Raphael in SZDDG v Minister for Immigration [2004] FMCA 420, in particular at paragraphs 8 to 10. I agree with the principles outlined by Federal Magistrate Raphael in paragraph 8 and 9 of that decision:

   In Walton v Gardiner (1992-1993) 177 CLR 378 at 392-393, Mason CJ, Deane and Dawson JJ said:

   “The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus it has long been established that regardless of the proprietary of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail…Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”

   The jurisdiction of a superior court in such case was correctly described by Lord Diplock in Hunter v The Chief Constable of the West Midlands Police (1982) AC 529 at [536] as:

   “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people”.

6. The Court finds that the application to the RRT by the applicant dated 15 November 2006 is “foredoomed to fail” and “seeks to litigate anew a case which has already been disposed of in earlier proceedings”.

7. To direct that the RRT proceed with the review sought in the application to it dated 5 September 2005 would be “manifestly unfair to the respondents in the matter before this Court, and would bring the administration of justice into disrepute among right thinking people.”

8. The Court finds that the application to it to order the RRT to conduct a review of the decision of the delegate in circumstances where it conducted a review, and rightly decided not to conduct a second review because it did not have jurisdiction, is an abuse of process of the Court. The application to this Court seeks an order that the RRT allow the applicant to “litigate anew a case which has already been disposed of” by the earlier decision signed on 27 October 2006.

9. A summary of proceedings by the applicant in relation to this matter is contained in the affidavit of Andras Markas sworn on 28 November 2006 as follows:

   1)On 12 October 1998 a delegate of the first respondent refused the applicant’s application for a protection visa.

   2)On 9 November 1998 the applicant applied to the RRT for a review of the delegate’s decision.

   3)On 20 March 2000 the RRT affirmed the decision of the delegate.

   4)On 20 April 2000 the applicant filed an application for review in the Federal Court of Australia.

   5)On 7 September 2000 the applicant filed a notice of discontinuance.

   6)On 31 October 2000 the applicant joined as a party to the Lie class action in the High Court of Australia.

   7)On 25 November 2002 by order of Justice Gaudron the matter was remitted instanter to the Federal Court.

   8)On 30 April 2004 Justice Emmett refused the application for an order nisi.

   9)On 10 May 2004 the applicant filed an application with this Court seeking to review the first RRT decision.

   10)On 13 December 2004 the application was dismissed as vexatious and an abuse of process, with an order that “no further application by this applicant to review the decision of the RRT made on 20 March 2000 and handed down on 4 April 2000 be accepted for filing in this Court, except by leave of the Court.”

   11)On 9 March 2005 an application to the Federal Court for leave to appeal was dismissed by Justice Selway.

   12)On 6 April 2005 the applicant filed an application with the High Court for special leave to appeal against the decision of Justice Selway.

   13)On 4 May 2005 the High Court deemed that matter to have been abandoned.

   14)On 30 August 2005 the High Court dismissed a further application for leave to appeal from the judgement of Justice Selway.

   15)On 13 January 2006 the applicant purported to file a further application in this Court seeking to challenge the first decision of the RRT.

   16)On 31 January 2006 Federal Magistrate Driver refused leave to file the application purportedly filed on 13 January 2006 contrary to the order of the Court on 13 December 2004 and dismissed the application as incompetent.

   17)

   On 3 May 2006 Justice Conti denied an application for leave to appeal to the Federal Court from the judgment of this Court on

   
   

   31 January 2006. His Honour ordered that the Registry of the Federal Court not accept for filing any application for review, or appeal, or leave to review or appeal presented on behalf of the applicant without prior leave of the Federal Court or of the Federal Magistrates Court.

   18)On 5 September 2006 the applicant lodged an application with the RRT for review of the delegate’s decision.

   19)On 27 October 2006 the RRT decided that it did not have jurisdiction to hear the matter.

   20)On 15 November 2006 the applicant filed an application with this Court seeking to review the decision of the RRT of 30 (sic 27) October 2006.

10. The Court finds that by seeking to review the decision of the RRT dated 27 October 2006 the applicant is in effect seeking an avenue to review the decision of the delegate dated 12 October 1998.

11. The Court is satisfied that in the application to this Court:

    a)The applicant has no reasonable prospect of successfully prosecuting the proceeding or claim (Rule 13.10(a)); and

    b)The proceeding or claim for relief is frivolous and/or vexatious (Rule 13.10(b)); and

    c)The proceeding or claim for relief is an abuse of process of the Court (Rule 13.10(c)).

    The Court orders that the application be dismissed generally.

12. The Court finds pursuant to Rule 13.11(1) that it is satisfied that the applicant has instituted a vexatious proceeding in this Court and has habitually, persistently, and without reasonable grounds instituted vexatious proceedings in the Court or and other Australian Courts. Therefore, on its own motion, the Court orders:

    a)That any proceeding initiated by the applicant in this Court may not be continued without leave of the Court; and

    b)That the applicant may not institute a proceeding in this Court without the leave of the Court;

    c)The Court directs that without prior leave of the Court the applicant is not to file, and Registry of the Court is not to accept for filing, any further application for review of:

    i)

    The decision of the delegate of the first respondent dated

    
    

    12 October 1998;

    ii)

    The decision of the second respondent Refugee Review Tribunal signed on 20 March 2000 and handed down on

    
    

    4 April 2000;

    iii)The decision of the second respondent Refugee Review Tribunal signed on 27 October 2006;

    iv)Any other decision relating to the applicant’s application for a protection visa lodged on 26 August 1998.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Sarah James

Date:  22 March 2007