S1494 of 2003 v Minister for Immigration
[2007] FMCA 1849
•24 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1494 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1849 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – second application to Tribunal – summary dismissal – no reasonable prospects of successfully prosecuting the proceedings. |
| Migration Act 1958 (Cth), Federal Court of Australia Act 1976 |
| Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 SZCTH v Minister for Immigration (No.1) [2004] FMCA 211 White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 |
| Applicant: | APPLICANT S1494 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2387 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 24 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2007 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed pursuant to r 13.10(a) of the Federal Magistrates Court Rules.
The applicant pay the costs of the first respondent fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2387 of 2007
| APPLICANT S1494/2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
Respondents
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the Court by way of a notice of motion filed by the first respondent on 29 August 2007 seeking summary dismissal of an application filed by the applicant in this Court on 2 August 2007 which sought review of a decision of the Refugee Review Tribunal dated 3 July 2007. The Tribunal found that it had no jurisdiction, in essence because the applicant had previously sought and obtained review by the Tribunal of the decision of a delegate of the first respondent not to grant the applicant a protection visa.
The first respondent seeks summary dismissal on a number of bases: that the applicant has no reasonable prospect of successfully prosecuting the proceeding, that the proceedings are frivolous and vexatious and that the proceedings are an abuse of process. Reliance was placed on an affidavit sworn and filed by Sarah Sharman on 29 August 2007 which included a chronology of events and annexed copies of prior decisions relevant to these proceedings.
As set out in that affidavit, the applicant in these proceedings arrived in Australia in June 2000 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. The Tribunal conducted a hearing and on 8 June 2001 affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant joined the Lie class action on 17 August 2001. Gaudron J ordered that the matter be remitted to the Federal Court of Australia and ultimately, on 20 February 2004, Emmett J refused the application for an order nisi.
On 22 September 2004 the applicant filed an application for judicial review of the Tribunal decision of 8 June 2001 in this Court. After a directions hearing the applicant sought to discontinue these proceedings and on 8 August 2005 leave was granted to the applicant by Nicholls FM to file a notice of discontinuance. However, on 1 March 2007 the applicant filed an application in the Federal Court of Australia for an extension of time to file and serve a notice of appeal. That application was dismissed by Spender J on 11 May 2007.
On 12 June 2007 the applicant lodged a further application with the Refugee Review Tribunal for review of the delegate's decision of 23 August 2000 to refuse to grant him a protection visa. On 3 July 2007 the Tribunal found that as it had already discharged its functions under the Migration Act to review the delegate's decision, it no longer had jurisdiction in relation to that decision. Having reached that conclusion, the Tribunal found it unnecessary to consider whether the review application lodged on 12 June 2007 was lodged outside the prescribed time period and invalid on that basis.
As indicated, the applicant sought review in this Court of what it is convenient to refer to as the second Tribunal decision, that is, the decision identified in the application as the decision of 3 July 2007 notified to the applicant on 5 July 2007.
The first ground of the application is that the Tribunal exceeded its jurisdiction or constructively failed to exercise jurisdiction or denied the applicant procedural fairness in that it failed to investigate his genuine claims in accordance with the Migration Act 1958. The second ground is that the application is not “vexation” (I take that to be intended to be a reference to the concept of vexatious) nor an abuse of process. It was contended by the applicant that the Tribunal decision could be reviewed by the Court a second time under certain circumstances (see SZCTH v Minister for Immigration (No.1) [2004] FMCA 211). Ground 3 is that the Tribunal applied the wrong test by requiring independent evidence of the fact before it would accept a claim being made by the applicant. It was submitted that the Tribunal placed too high an onus of proof on the applicant and failed to give the applicant the benefit of the doubt.
The first respondent seeks summary dismissal of this application. The primary basis relied upon is that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim (see Part 13 Rule13.10(a) of the Federal Magistrates Court Rules).
It is clear that the Tribunal conclusion that as there had been a prior review of the delegate's decision in issue, it no longer had jurisdiction to review that decision because it had discharged its functions under the Migration Act 1958 (Cth) to carry out such a review was correct (see Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 and SZASP v Minister for Immigration & Citizenship (2007) FCA 771 at 4 and cases cited therein). Insofar as it may be intended to suggest in the application for review of the Tribunal decision that the Tribunal was under some obligation to invite the applicant to a hearing or otherwise investigate his claims to be a refugee, the issue for the Tribunal that was determinative was whether it had jurisdiction. The Act does not oblige the Tribunal to invite an applicant to a hearing in relation to the preliminary issue of whether the Tribunal had jurisdiction.
While the mere fact that the grounds in the application are unparticularised and expressed in general terms is not of itself determinative, the application for review is bound to fail. There has been no argument put before the Court by the applicant, nor indeed is there any argument available to the applicant which holds any prospect of success in establishing that the Tribunal had jurisdiction to consider afresh (cf SZCTH) his entitlement to a protection visa in this instance or that it fell into jurisdictional error in finding that it had no jurisdiction.. On this basis I am satisfied that it has been established that the applicant has no reasonable prospect of successfully prosecuting the proceeding and hence that the application should be dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.
I have borne in mind the caution to be exercised in relation to any application for summary dismissal. As a matter of principle, an order which prevents a party from pursuing a claim should only be made in a very clear case. I have also had regard to the test applicable under rule 13.10(a) of no reasonable prospect of successfully prosecuting the proceeding (see the discussion by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) FCA 1352 in relation to the assessment of reasonable prospects of success for the purposes of s.31A of the Federal Court of Australia Act 1976). For the reasons set out above I am satisfied that the application for review of the second Tribunal decision is bound to fail (see White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 at 45-60).
In these circumstances it is not necessary for the Court to determine whether the proceedings are also an abuse of process or, indeed, whether they are frivolous and vexatious. In that respect I note first, however, that in this case, in contrast to some other cases involving an application for review of a second Tribunal decision, the applicant does not have such an extensive prior history of litigation in relation to the first Tribunal decision as was considered by Moore J in SZASP v Minster for Immigration and Citizenship [2007] FCA 771. His involvement in the Lie class action did not prevent the applicant's subsequent initiation of individual proceedings seeking review of the first Tribunal decision in this Court.
Further, contrary to the first respondent’s submissions, in the circumstances of this case I am not persuaded that the delay that there was on occasion between one proceeding and a subsequent proceeding is in all the other circumstances of this case such as to establish that the applicant can have had little doubt about the futility of the proceedings so that the application should be found to be an abuse of process. Nor is the fact that the application is unparticularised such as to demonstrate that the self-represented applicant had little doubt about the futility of the proceedings and that hence they amounted to an abuse of process. I am not persuaded that it can be said in this particular instance that the applicant has habitually and persistently instituted proceedings.
It was submitted for the first respondent that the applicant had already been denied leave to pursue further proceedings in relation to the Tribunal decision. There is no evidence before the Court of any such order. The orders of Spender J, who appears to have been the last Judge to have considered this matter, were simply that the application be dismissed and the applicant pay the costs of the respondent. In all the circumstances of the case I am not persuaded that it is appropriate to dismiss these proceedings on the basis that they are vexatious.
As indicated, however, I am satisfied on the basis of the material before me that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim and that his application ought to be dismissed on that basis pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.
The first respondent also seeks that the Court make an order under rule 13.11(1)(b) of the Federal Magistrates Court Rules. I do not consider that this is a case in which it is appropriate to make such an order as the requirements of rule 13.11(1) are not met. As indicated, I am not satisfied that these proceedings are vexatious and it has not been established that the applicant has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or in any other Australian court. For the sake of completeness, I note that the circumstances would not appear to be such to bring rule 13.11(3) into play on the basis of the findings made by me in these proceedings and on the evidence before me as to the prior proceedings initiated by the applicant.
I also note generally in relation to the first respondent’s application for an order that the applicant not institute a proceeding without the Court's leave, the comments of Moore J in SZASP v Minister for Immigration and Citizenship [2007] FCA 711 at [24] in relation to the questionable utility of such orders and his Honour's doubt as to whether the course of declaring an applicant a vexatious litigant is effective in practice as a means of addressing the problem of repeat litigation which results in the grant of bridging visas and as a consequence permits people to remain in Australia and prosecute proceedings.
In the circumstances, it has not been established that this is a case in which it is appropriate to order costs on an indemnity basis. It is, however, appropriate that the unsuccessful applicant should meet the costs of the first respondent. The fact that he is unemployed is not a matter which warrants a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent, although that fact and his suggestion that he could only pay costs in small instalments may be matters to be taken into account by the first respondent in determining when and how to seek to recover any costs. It was indicated that the costs of the first respondent on a party-party basis were $2,000 and I consider it appropriate to order the payment of costs on that basis.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
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