S105 of 2003 v Minister for Immigration

[2007] FMCA 789

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S105 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 789

MIGRATION – Application for review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – show cause proceedings under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) – decision of the Refugee Review Tribunal upheld by the Federal Magistrates Court, the Federal Court and the High Court – new application dismissed as an abuse of process and incompetent under the Migration Litigation Reform Act 2005 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 476, 477, 483A
Migration Litigation Reform Act 2005 (Cth)
Federal Magistrates Court Rules 2001 (Cth), rr.10.01(2), 13.10, 44.11, 44.12, 44.15

Applicant A321 of 2002 v Minister for Immigration [2004] FCA 306
SZCJN v Minister for Immigration [2006] FMCA 56
Walton v Gardiner (1993) 177 CLR 378

Applicant: APPLICANT S105 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG834 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 3 May 2007

Delivered at: Sydney

Delivered on: 3 May 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Bengali interpreter

Solicitor for the Respondents: Mr O Young of Blake Dawson Waldron

ORDERS

1. The application filed on 13 March 2007 is dismissed as incompetent and an abuse of process.

2. The Court directs that no further application by the applicant to review the decision of Steve Karas of the second respondent, reference 071081042, made on 20 February 2007, or the decision of the delegate of the first respondent made on 20 October 1999, is to be accepted for filing without leave of this Court.

3. That the applicant pay the first respondent’s costs of these proceeding fixed in the amount of $2,250 in accordance with r.44.15(1) of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG834 of 2007

APPLICANT S105 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 March 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 February 2007, affirming the decision of the delegate of the first respondent made on 20 October 1999, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “Applicant S105 of 2003”.

3. The applicant seeks an order that the first respondent show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. The matter was listed for a first Court date on

   
   

   3 April 2007 and then again on 17 April 2007.  I adjourned the matter to today to enable the parties to prepare written submissions.

4. The application to this Court acknowledges that the applicant received notification of the Tribunal decision on 21 February 2007.  The grounds of the application are as follows:

   1.The tribunal failed to act according to migration law and regulation.

   2.The tribunal did not apply the correct laws when consider this matter.

   3.The tribunal misinterpreted the migration laws.

   4.The tribunal failed to exercise its jurisdiction under the migration act.(copied without alteration or correction)

5. On 20 April 2007, solicitors for the first respondent filed an amended response containing the following:

   1.the four grounds of the application do not disclose an arguable jurisdictional error in the Tribunal’s decision.

   2.there is no jurisdictional error in the Tribunal’s decision because:

   (a)   the Tribunal is functus officio because it has previously reviewed the decision of the delegate of the First Respondent dated 20 October 1999

   PARTICULARS

   (i)   the Tribunal previously reviewed the decision of the delegate of the first respondent made in respect of the applicant and handed down its decision on 5 February 2002 (first Tribunal’s decision).

   (ii)  the first Tribunal’s decision was not found to contain any jurisdictional error: NADI v MIMIA [2002] FCA 649; NADI of 2002 v MIMIA [2002] FCA 1055; S105 of 2003 v MIMA [2006] FMCA 125; Applicant S105/2003 [2006] FCA 639; and Applicant S105/2003 v MIMA & Anor [2006] HCA Trans 701.

   (b)   The Tribunal was therefore correct to find that it did not have jurisdiction to review the delegate’s decision.   

Litigation history

1. The previous Tribunal (first Tribunal) decision made on 5 February 2002 was reviewed in the following:

   a)Applicant S105/2003 v Minister for Immigration [2006] FMCA 125 (16 January 2006) per Scarlett FM;

   b)Applicant S105/2003 v Minister for Immigration [2006] FCA 639 (9 May 2006) per Young J;

   c)Applicant S105/2003 v Minister for Immigration [2006] HCATrans 701 (14 December 2006) per Hayne and Crennan JJ.

2. The second Tribunal decision of S Karas, reference 071081042, was dismissed on the ground that the Tribunal did not have jurisdiction.

Submissions and reasons

1. Under r.10.01(2) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth), which repealed the Court’s previous broader jurisdiction under s.483A of the Act and introduced a new s.476. At the same time, r.44.11(a) was introduced to the Rules, and the Court may dismiss an application at the first Court date on an interlocutory basis, with specific reference to r.44.12 which states:

   (1)At a hearing of an application for an order to show cause, the Court may:

   (a)   if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or

   (b)     …

   (c) …

   (2)To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.

2. I note that this power should be exercised cautiously and only in appropriate circumstances. In this case, there is an incontestable absence of jurisdiction due to the multiple times this applicant has been before the Courts as referred to above at [6]. The Federal Magistrates Court, the Federal Court and the High Court have determined that there is no jurisdictional error in the Tribunal decision.

3. The conduct of the applicant was effectively summarised by Hayne J in Applicant S105/2003 v Minister for Immigration [2006] HCATrans 701:

   The applicant, a citizen of Bangladesh, seeks special leave to appeal against orders of a single judge of the Federal Court of Australia (Young J) made in the exercise of the appellate jurisdiction of that Court. By those orders, Young J dismissed the applicant’s appeal against orders of the Federal Magistrates Court (Scarlett FM) dismissing, as an abuse of process, an application for an order nisi for constitutional writs and other relief directed to the Refugee Review Tribunal. The proceedings in the Federal Magistrates Court were held to be an abuse of process on the basis that the applicant had earlier prosecuted proceedings to an unsuccessful end at first instance and on appeal by which the applicant sought judicial review of the Tribunal’s decision.

   There is no reason to doubt the correctness of the conclusion reached by Young J that no arguable case of jurisdictional error by the Tribunal was demonstrated. Wider questions of abuse of process do not fall for consideration.

4. The doctrine of res judicata creates a complete bar to certain grounds pleaded in an application where an applicant seeks to re-litigate the same claims already raised in earlier proceedings.  Res judicata operates as a bar to a new application.  As a final judgment was given by Scarlett FM on 16 January 2006, by Young J in the Federal Court on 9 May 2006, and dismissed by Hayne and Crennan JJ in a Special Leave application to the High Court on 14 December 2006, the application is barred by the operation of res judicata.

5. The proceedings are an abuse of process. Rule 13.10 of the Rules provides:

   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a)   the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   (b)   the proceeding or claim for relief is frivolous or vexatious; or

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

6. In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ stated:

   …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…

7. In Applicant A321 of 2002 v Minister for Immigration [2004] FCA 306 at [18] – [19], Wilcox J found that res judicata applied in that case.  His Honour also observed at [19] that:

   If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393.

Conclusion

1. I believe that all the applicant has done is to file another application to start the whole circular process again.  This is nothing more than an attempt to further delay finality by misusing the Court’s processes.  This is clearly an abuse of process.  Consequently, the application filed on 13 March 2007 must be dismissed.

2. I am satisfied that an order for costs should be made in this matter.  I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application, fixed in the sum of $2,250.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  24 May 2007