S1689 of 2003 v Minister for Immigration
[2005] FMCA 1625
•4 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1689 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1625 |
| MIGRATION – Application to review decision of delegate of the respondent – where prior review proceedings in relation to decision of Refugee Review Tribunal – applicant failed to appear – application dismissed summarily as an abuse of process. |
| Migration Act 1958 Federal Magistrates Court Rules 2001, rr.13.03A(d), 13.10, 13.10(c) |
| Wu v Minister for Immigration & Multicultural & Indigenous Affairs (1994) 48 FCR 294 Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 |
| Applicant: | APPLICANT S1689 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2260 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2005 |
REPRESENTATION
| Applicant: | No Appearance |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application for judicial review filed on 19 August 2005 be dismissed on the grounds that:
(a)pursuant to Part 13, Rule 13.10 (c) of the Federal Magistrates Court Rules the proceedings are an abuse of process; and
(b)pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Rules the application fails to disclose a reasonable cause of action.
That the applicant pay the respondent's costs on an indemnity basis fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2260 of 2005
| APPLICANT S1689 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the court by way of notice of motion filed by the respondent on 9 September 2005 seeking orders that the application for judicial review of a decision of a delegate of the respondent refusing to grant the applicant a protection visa filed by the applicant on 19 August 2005 be dismissed on the grounds that the proceedings are an abuse of process within Rule 13.10(c) and fail to disclose a reasonable cause of action within Rule 13.10(a) of the Federal Magistrates Court Rules 2001.
The applicant is not present today. However, the respondent asked the Court to proceed with the hearing under Rule 13.03A(d). The solicitors for the respondent wrote to the applicant on 9 September 2005 enclosing by way of service a copy of the respondent's notice of motion and supporting affidavit. That letter confirmed that the notice of motion was listed today at the time and place specified. The applicant attended a directions hearing on 20 September 2005 and had the assistance of a Bengali interpreter. The hearing date for the notice of motion was confirmed on that day. Orders were made for the filing of written submissions in relation to the notice of motion. Moreover, the solicitors for the respondent wrote to the applicant by express post on 20 October 2005 enclosing by way of service a copy of the respondent's submissions and confirming that the notice of motion for summary dismissal was listed at the date, time and place specified. There have been no submissions filed by the applicant and no correspondence with the court or the solicitors for the respondent brought to the attention of the court. The applicant did not appear. Given the notification to the applicant and the history of past proceedings, in the particular circumstances of this case I consider that it is appropriate to proceed (as I am empowered to do under Rule 13.03A(d)) with the hearing of the notice of motion.
The relevant chronology is that the applicant arrived in Australia in May 1998. He applied for a protection visa in June 1998. The application was refused by a delegate of the respondent on 30 June 1998. The applicant sought review by the Refugee Review Tribunal. He attended a Tribunal hearing. On 22 June 2000 the Tribunal handed down a decision affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant commenced proceedings in the Federal Court on 17 July 2000, seeking review of the Tribunal decision. The matter was listed for hearing on 9 November 2000. However on 6 November 2000 a notice of discontinuance was filed by the applicant. On 15 December 2000 the applicant joined the Lie class action in the High Court. On 25 November 2002 the matter was remitted to the Federal Court. On 20 February 2004 the applicant's application for an order nisi was refused by Emmett J. (Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289).
On 18 May 2004 the applicant lodged a fresh application for judicial review of the Tribunal decision in the Federal Magistrates Court. There was a directions hearing. The respondent filed a notice of motion seeking summary dismissal. At the hearing of the notice of motion on 29 November 2004 a notice of discontinuance was filed by the applicant. It is relevant to note that on that day Federal Magistrate Driver gave leave for the notice of discontinuance to be filed in court, ordered that the applicant pay the respondent's costs, ordered that no further application to review the decision of the Tribunal be accepted for filing without leave of the court, and directed that the Minister serve a sealed copy of the orders on the applicant.
Despite the notice of discontinuance, on 14 February 2004 the applicant filed an application for leave to appeal and for an extension of time to file the notice of appeal in the Full Court of the Federal Court. On 17 February 2005 the Full Court of the Federal Court, constituted by Moore J, dismissed the application for non-appearance. It was also ordered that no further application to review the decision of the Tribunal be accepted for filing except by leave of the Court. On
15 April 2005 the applicant filed an application for special leave to appeal in the High Court. On 1 August 2005 Gummow and Kirby JJ dismissed that application.
On 19 August 2005 the applicant filed on application in this Court expressed as an application to review the notification of the decision and the decision of the delegate of the Minister to refuse to grant the applicant a protection visa. It recites however that the applicant was notified of the decision that was the subject of the application on 30 June 1998.
The application contains four generally expressed grounds: that the decision was not made according to law; the decision failed to observe the prescribed method of delivery and notifying a decision; that the delegate did not have power to give the decision; and that the decision was infected by jurisdictional error and breach of procedural fairness.
Those grounds are elaborated on by contentions that there was a breach of natural justice, that the decision was not notified to the applicant so that the required procedures were not observed; that the delegate did not have jurisdiction and the Minister did not have power to take the decision into effect; and that the decision was infected by error of law being an improper exercise of power. It was conceded that the application was late and contended that it was neither vexatious nor an abuse of process because a delegate’s decision could be reviewed under certain circumstances.
The respondent's notice of motion contends that the proceedings are an abuse of process and fail to disclose a reasonable cause of action. There are a number of bases for each of these contentions. Some of these raise issues of some complexity. However, I am persuaded that, for the reasons set out below, the notice of motion should succeed and the application for judicial review should be dismissed.
The first of the grounds relied upon is that the application discloses no reasonable cause of action because, even if there was a jurisdictional error affecting the decision of the delegate, it was cured by the decision of the Tribunal which had been held not to be invalid. Reliance was placed on the principles in Wu v Minister for Immigration & Multicultural & Indigenous Affairs (1994) 48 FCR 294; Yilmaz v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 1025, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; and NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 91 as well as the High Court decision in Twist v Randwick Municipal Council (1976) 136 CLR 106.
It was contended that the fact that a Tribunal decision will “cure” a primary decision is established law which has been approved by the Full Court of the Federal Court that a Court will not grant relief in respect of a delegate’s decision where the person affected has taken the opportunity to seek a de novo merits review and the decision on review was not flawed by error subject to correction in judicial review proceedings. This principle applies where it is clear that there is no defect in the Tribunal decision and that the decision is a privative clause decision. On this basis it is contended that the proceedings should be dismissed as not disclosing a reasonable cause of action. (SZGKO v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1254).
A possible difficulty in relation to this contention in this case is that there has not in fact been a final hearing in relation to the decision of the Tribunal, despite the various proceedings which the applicant has initiated. The initial proceedings in the Federal Court were discontinued. The fresh proceedings in the High Court were ultimately disposed of by an application for an order nisi being refused by the Federal Court (See Applicant S1174 at [28]). The fresh proceedings in the Federal Magistrates Court were discontinued. The applicant sought to appeal. His application for leave to appeal was dismissed for non-appearance. The application for special leave to appeal was dismissed pursuant to Rule 41.10.5. There are no written reasons for such dismissal. This raises a question as to whether it has been determined that there is no defect in the Tribunal decision. However it is not necessary for me to determine whether the Tribunal decision is a privative clause decision because I consider that, on alternative bases contended for by the respondent, the application fails to disclose a reasonable cause of action, and further, the proceedings are an abuse of process.
One of the alternative bases argued is Anshun estoppel. It is contended that the applicant is estopped on Anshun estoppel principles from attacking the decision of the delegate because, if it was capable of being challenged it should have been challenged when the Tribunal's decision was challenged. It is submitted that the subject matter of these proceedings was so relevant to the subject matter of the prior proceedings initiated in the Federal Court and in this Court that it was unreasonable for the applicant not to have raised such matters at that time. (See Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589, and SZGKO and NAWW at[4] for a discussion of the operation of these principles in such a context). I note that the application to the High Court for an earlier order nisi is of a different nature (see Emmett J in Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 at [28]) albeit in relation to the possibility of a fresh proceeding in relation to a Tribunal decision.)
The applicant has not brought to the attention of the Court any special circumstances which would justify the exercise of discretion not to apply the principles of Anshun estoppel. I incline to the view that while in this instance there was not a final decision in relation to the applications that have been brought in the Federal Court and this Court by the applicant in relation to review of the Tribunal decision, it may still be said that the principles of Anshun estoppel are capable of applying. The decision of the delegate could and should have been challenged when the Tribunal's decision was challenged. Were the matter to proceed to a final hearing the application should fail on Anshun estoppel principles.
If I am wrong then I am satisfied there is an alternative basis for the dismissal of the proceedings as suggested by Federal Magistrate Smith in a number of decisions, in particular SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316 at [25], to the effect that:
There could be no entitlement to have the Minister or her delegate resume or complete any decision making on the applicant's visa applications since, in my opinion under the scheme of decision making in the Migration Act the Minister became functus officio in relation to her powers of decision in relation to the protection visa applications after an application for merits review had been made and determined by the Tribunal.
On that basis the applicant's claim seeking review of the delegate's decision must fail. In that sense it would constitute circumstances that come within Rule 13.10(a) of the Federal Magistrates Court Rules 2001 as failing to disclose a reasonable course of action. (Also see NAWW).
In any event I am satisfied that these proceedings should be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of process. While I bear in mind the limited circumstances in which an abuse of process may be established, in this instance there has been the filing of repeated applications with respect to the same subject matter, albeit not specifically in relation to the decision of the delegate. The applicant has had an opportunity in the course of those prior proceedings to raise any complaints regarding the delegate's decision. That would have been the appropriate place for such complaints to be raised. The applicant failed to do so.
I note also that the applicant brought the first Federal Court proceedings and the most recent Federal Magistrates Court proceedings to an end by discontinuance. He failed to attend before the Full Federal Court. No explanation has been provided. I have also had regard to the litigation history of the applicant and the delay from the time of the Tribunal’s decision (subject to what is said in Applicant S1174) in raising the present challenge to the decision of the delegate.
I have also had regard to the fact that the proceedings may be said to be unjustifiably vexatious and oppressive to the respondent. To allow proceedings of this nature to be continued would bring the administrative of justice into disrepute. (See Walton v Gardiner (1993) 177 CLR 378 at [393]; Rogers v The Queen (1994) 181 CLR 251 at [255]-[256] and Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 at [323]-[326]. It is appropriate in this instance for the court to have regard to the underlying public interest that there be finality in litigation. Although the respondent in this instance is not a private party, nonetheless a party should not be vexed over and over in relation to what is, in essence, the same matter.
Having regard to the applicant's litigation history, I consider it is appropriate to draw the inference that the applicant has filed the present application for the collateral purpose of extending the period of stay in Australia. In all these circumstances I am satisfied that the proceedings filed by the applicant on 19 August 2005 are an abuse of process.
In light of my findings, particularly in relation to abuse of process and the background to this application, I consider that it is an appropriate case in which the applicant should be ordered to pay the respondent's costs on an indemnity basis fixed in the sum of $3,500.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 16 November 2005.
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