S1706 of 2003 v Minister for Immigration
[2004] FMCA 782
•9 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1706 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 782 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – notice of objection to competency – notice of objection to competency upheld – application dismissed. |
Migration Act 1958 (Cth), s.483A
Judiciary Act 1903 (Cth), s.39B
R v Balfour; Ex parte Parkes Rural Board Distributions Pty Ltd (1987) 76 ALR 256
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
Walton v Gardiner (1993) 177 CLR 379
SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 225
SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404
| Applicants: | APPLICANTS S1076 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2901of 2004 |
| Delivered on: | 9 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 9 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
No appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The respondent’s Notice of Objection to Competency is upheld and the application is dismissed as incompetent.
The application is dismissed as an abuse of process pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules.
The first applicant pay the respondent’s costs fixed in the amount of $2,500.
No further application by the applicants to review the decision of the Refugee Review Tribunal made on 5March 1998 be accepted for filing except with leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2901 of 2004
| APPLICANTS S1706 of 2003 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Motion filed on 6 October 2004, the Respondent moves the Court for orders that these proceedings be summarily dismissed on the grounds that they are an abuse of process. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 September 2004. The respondent tendered and applied on an affidavit of Emma Jayne Knight sworn on 18 October 2004 (“the affidavit of Ms Knight”) to be admitted to evidence:
Background
On 12 August 1997, the first applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 19 August 1997 the delegate of the respondent made a decision refusing to grant the applicants a protection visa.
On 17 September 1997 the first applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (“the Tribunal”). On 6 April 1998 the first applicant filed an application for an Order of Review in the Federal Court of Australia to review the decision of the Tribunal made on 5 March 1998. On
12 August 1998, Burchett J made orders by consent in the Federal Court proceedings dismissing the application with costs.
Over two years later, on 22 December 2000 the first applicant joined the Lie class action in the High Court of Australia. Those proceedings were dismissed on 20 June 2003 by force of orders made by Gaudron J on 25 November 2002 and McHugh J on 16 June 2003.
On 29 May 2002 the applicants’ former solicitor, Adrian Joel, filed an application for an order nisi and affidavit in the High Court seeking review of the Tribunal’s decision made on 5 March 1998. The application was remitted instanter to the Federal Court. The application for an order nisi was refused by Emmett J on 20 February 2004.
On 22 September 2004, the applicant filed an application for Judicial Review in the Federal Magistrates Court at Sydney seeking review of the Tribunal’s decision made on 5 March 1998.
The following ‘grounds’ of review are pleaded:
“1.That a breach of the rules of natural justice and procedural fairness occurred in connection with the making of the Decision. The applicant was denied an opportunity to be heard.
2.That the Applicant was denied procedural fairness in connection with making of the decision.
3.That the Decision involved an error of law whether or not the error appears on the record of the Decision.
4.In addition to this, the Decision maker ignored relevant material. This amounts to a jurisdictional error.
3That the procedures that were required to be observed in connection with the making of the Decision were no observed. Therefore procedures that were required by law to be observed in connection with the making of the Decision were not observed which amounts to a jurisdictional error.
4That the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
5That there was no evidence or other material to justify the making of the Decision.
6That the Decision was otherwise contrary to law.”
Abuse of process
The respondent contends that the current application is an abuse of the process of the Court for the following reasons:
a)Even where the conditions necessary for res judicata or Anshun estoppel cannot for some reason be satisfied, a person may be prevented by the doctrine of abuse of process from re-litigating questions that have already been decided, or that should already have been decided, by a competent court: R v Balfour; Ex parte Parkes Rural Board Distributions Pty Ltd.
b)
The applicants’ litigation history clearly raises the inference that the present application has been filed for the collateral purpose of extending their stay in Australia: NALE v Minister for Immigration & Multicultural & Indigenous Affairs at [12]. In particular, the applicants waited over two years after their earlier proceedings in the Federal Court were dismissed by Burchett J on 12 August 1998 before joining the Lie class action on
22 December 2000. Also relevant is the seven month delay between the orders made by Emmett J on 20 February 2004 dismissing the first applicant’s application for an order nisi and the filing of the current application on 22 September 2004.
c)The repeated bringing of similar applications for judicial review of the same Tribunal decision is unjustifiably vexatious and brings the administration of justice into disrepute, particularly as there is an underlying public interest in the finality of litigation: SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs, Walton v Gardiner at 393.
d)The current application suffers from the same vice as the applicants’ previous applications to the Federal Court and High Court in that it is devoid of particulars disclosing any substantial basis for the prosecution of the application: see SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs at [21] per Moore J. As was said by Madgwick J in SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs, “[t]he proceedings, being groundless on their face, are an abuse of process.
Jurisdiction
There has been no previous judicial pronouncement as to whether the decision of the Tribunal made on 5 March 1998 is a ‘privative clause decision’.
The respondent moves on its Notice of Objection to Competency filed on 6 October 2004 and contends that this Court does not have jurisdiction to review the Tribunal’s decision as s.477(1A) of the Migration Act 1958 (Cth) (“the Act”) provides that an application to the Federal Magistrates Court under s.39B of the Judiciary Act1903 and s.483A of the Act in respect of a privative clause decision must be made within 28 days of the notification of the Tribunal decision
The respondent contends that the Tribunal’s decision is absent any jurisdictional error and is consequently to be properly regarded as a ‘privative clause decision’. The primary basis for the Tribunal’s rejection of the applicants’ claims was that they were inconsistent with the independent country information, which was discussed with the first applicant at the hearing. The weight to be given to the country information, its interpretation and accuracy are all factual matters with which the Court cannot interfere. The reasons identified by the Tribunal for its findings and the approach that it adopted reveal no error. As the applicants have filed their application for review of a privative clause decision outside the mandatory statutory time limits, the Court, it is submitted, has no jurisdiction to hear the application.
I certify that the eleven (11) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 November 2004
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