S1137 of 2003 v Minister for Immigration

[2007] FMCA 546

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1137 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 546

MIGRATION – Application for summary dismissal – whether abuse of process.

Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001 rr.13.10, 44.12(1)(a)

Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275
SZDMO vMinister for Immigration & Multicultural Affairs [2006] FCA 989
Worthley v England (1994) 52 FCR 69

Applicant: APPLICANT S1137 of 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3220 of 2006

Judgment of: Barnes FM

Hearing date: 5 April 2007

Delivered at: Sydney

Delivered on: 5 April 2007

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The notice of motion of 21 December 2006 is dismissed.

2. The matter be listed for final hearing on Thursday, 19 July at 2.15pm.

3. The applicant file and serve any further written submissions fourteen (14) days before the hearing.

4. The first respondent file and serve written submissions seven (7) days before the hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3220 of 2006

S1137 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter comes before the Court by way of a notice of motion filed by the first respondent on 21 December 2006. The first ground in the notice of motion sought dismissal pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules. However this ground was not pursued, it being recognised that the proceedings before the Court are an application for summary dismissal and this is not a hearing of an application for an order to show cause. The grounds relied on under the notice of motion, therefore, are that the application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules on the basis that the proceeding is an abuse of the process of the Court or vexatious.

2. The proceedings in issue is an application filed by the applicant on 3 November 2006 seeking judicial review of a decision of the Refugee Review Tribunal made on 5 October 2006.  The background to these proceedings is somewhat lengthy, but for present purposes it is sufficient to note that the applicant made an application for a protection visa in 1998.  That application was refused and was reviewed by the Refugee Review Tribunal.  The decision of the delegate was affirmed on 5 October 2000 and the applicant sought judicial review of that first Tribunal decision on numerous occasions in the Federal Court, in the Lie class action in the High Court and then again in this Court, on appeal to the Federal Court and in an unsuccessful application for special leave to appeal to the High Court.

3. Relevantly, the applicant then lodged a further application with the Tribunal for review of the delegate’s decision.  It is the Tribunal decision in response to that application of 5 October 2006, in which the Tribunal decided that as it had already discharged its functions and did not have jurisdiction to conduct a further review, that is in issue. 

4. It was submitted for the first respondent that the proceedings for review of that Tribunal decision should be dismissed as an abuse of process on the basis that the amended application filed on 23 February 2007 was not directed to the basis on which the second Tribunal decision was decided, that the present proceedings were doomed to fail, and hence an abuse of process and that it was apparent that the applicant was motivated by the collateral purpose of enabling him to extend his eligibility for a bridging visa. 

5. There are two things to note.  First there is no reliance by the respondent in these proceedings on a contention that the party prosecuting the proceeding had no reasonable prospect of successfully prosecuting the proceeding.  Secondly, what distinguishes this case from other cases which might at first glance appear to be similar, is that in support of the second application to the Tribunal, the applicant made claims as to a change of circumstances in his former country (in particular, in relation to what was said to be a pending criminal case.) 

6. The submissions for the respondent addressed the question of the jurisdiction of the Tribunal and authority such as SZDMO vMIMA [2006] FCA 989 in support of the proposition that the Tribunal is functus officio once it has validly reviewed the delegate’s decision.  I note that SZDMO was not a case in which the issue of abuse of process was in issue, but rather an application for leave to appeal from a decision of this Court and did not consider whether an application for review of such a Tribunal decision was an abuse of process.

7. Rather SZDMO was an application for leave to appeal from a dismissal of an application by Federal Magistrate Driver in the course of a show cause hearing because the application failed to disclose an arguable case. 

8. What troubles me in this case, given the grounds relied on, is that it is well established that the power to dismiss a proceeding for an abuse of process is an exceptional power, to be sparingly exercised and only in exceptional circumstances, (Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 at 279. There is also authority, see for example Worthley v England (1994) 52 FCR 69, that the question of whether there is in a particular case an abuse of process will depend upon the purpose of an applicant seeking the order of the Court and the circumstances of the case and that for an abuse to be found it will be necessary that the offensive purpose be, at the least, the predominant purpose.

9. There are the circumstances in this case of the initial Tribunal decision and the applicant’s pursuit of judicial review in relation to that decision in the manner that I have outlined above. Set against that is, as I indicated, the distinguishing factor in relation to the new grounds that the applicant sought to raise with the Tribunal in the second application. In effect, I am being asked find an abuse to of process in seeking review of that decision by reference to the fact that under the Migration Act the appropriate procedure for the applicant, rather than seeking fresh review by the Tribunal, would have been to seek to have recourse to the Minister under section 417 or section 48. However I am not being asked to consider those matters in the context of a claim that the applicant has no reasonable prospect of success, but rather to draw from the facts inferences sufficient to enable me to find that the applicant has a collateral purpose such that the proceeding in this court is an abuse of process.

10. In the particular circumstances of this case, I am not persuaded that I should summarily dismiss the application as an abuse of process or as vexatious.  In the letter respect I note that this is not an application for review of the first Tribunal decision.  My reasons for this turn significantly on the particular circumstances of this case as distinct from other cases in which there may, nonetheless, be found to be an abuse of process where judicial review is sought in relation to a second attempt to challenge a delegate’s decision before a Tribunal.  I consider that it is appropriate that there should be a final hearing, dealt with expeditiously, in relation to the applicant’s application for review of the second Tribunal decision. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  13 April 2007