S1753 of 2003 v Minister for Immigration - [2005] FMCA 1948

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1753 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 1948

MIGRATION – Delegate’s decision refusing protection visa – application for judicial review – previous merits and judicial review applications – application dismissed as abuse of process.

Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court Rules, 13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119
SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821
SZDLV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 876
SZDLV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1452
SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549

Applicant:

APPLICANT S1753 OF 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2878/2005

Delivered on:

23 December 2005

Delivered at:

Sydney

Hearing date:

23 December 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms L Gazi

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the respondent’s costs on an indemnity basis in the sum of $2,100.
Direct that no further application for review of the decision of the Refugee Review Tribunal dated 25 August 2000 and handed down on 13 September 2000 or for review of the decision of the delegate of the respondent dated 3 December 1999 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2878 of 2005

APPLICANT S1753 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this matter invokes this Court's jurisdiction previously conferred by s.483A of the Migration Act 1958 (Cth) under s.39B of the Judiciary Act 1903 (Cth). It seeks orders by way of judicial review in relation to a decision of a delegate of the Minister dated 3 December 1999, which refused to grant a protection visa to the applicant. The applicant arrived in Australia as a seaman in 1999, and then applied for his protection visa.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuation of these proceedings (see Sch.1 cl.41 of the amending Act, and the Acts Interpretation Act 1901 (Cth) s.8).
The application was given a first Court date of 15 November 2005 before me, and on that occasion the Minister foreshadowed an interlocutory application for the summary dismissal of the proceeding. I gave directions for the filing and service of the supporting documents, and set the matter down for hearing of the interlocutory application today. I am satisfied that the applicant has been properly served with the relevant documents. He has filed an outline of submissions in response, to which I shall refer below.
The notice of motion seeks an order that the application be dismissed under Federal Magistrates Court Rule 13.10(c) and other paragraphs of that rule. I propose to consider the matter under r.13.10(c), and to consider whether the application is an abuse of the process of the Court by reason of a history of litigation engaged in by the applicant which I shall refer to below, and whether his present application is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119 at [61]).
The applicant's history of litigation in relation to decision-making on his protection visa application is set out in the affidavit of Laura Gazi sworn 17 November 2005, and attached documents.
Briefly, the applicant undoubtedly received notice of the delegate's decision, since he lodged an application for review by the Refugee Review Tribunal within the mandatory time limit. The Tribunal held a hearing which the applicant attended with his adviser, and handed down a decision affirming the delegate's decision on 13 September 2000.
On 10 October 2000 the applicant filed an application in the Federal Court of Australia seeking judicial review of that decision. It was discontinued pursuant to a notice of discontinuance signed by the applicant on 5 January 2001.
The applicant then allowed his rights to rest for three years. On 5 May 2004 he filed a second application for judicial review of the Tribunal’s decision, this time in this Court. The matter came on for hearing before Nicholls FM on 26 November 2004. His Honour delivered judgment on 4 July 2005, dismissing the application (see SZDLV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 876). In his judgment, Nicholls FM reviewed the decision of the Tribunal and various points raised by the applicant, and concluded that the Tribunal's decision did not demonstrate any jurisdictional error.
The applicant on 10 August 2005 filed an application for an extension of time to file a notice of appeal to the Federal Court of Australia. The application came for hearing before Conti J on 31 August, and his Honour adjourned the hearing to 20 September 2005. He gave a judgment refusing the application on that day (see SZDLV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1452).
Conti J considered both the applicant's explanation for delay in seeking to appeal, and the prospects of success in any appeal. In relation to the latter, he examined the reasoning of the Tribunal and Nicholls FM. He said:
I agree with his Honour that the Tribunal found that the applicant's claims lacked credibility, and that those findings were reasonably open to it.
He said:
I am not satisfied that the applicant has provided an adequate explanation of why he was so late in seeking to bring this appeal. In circumstances where the prospects of success of the contemplated appeal are so slight as to be virtually non-existence, there is even less chance of an applicant establishing necessary ‘special reason’ referred to by the Court in Jess v Scott.
Following his lack of success in that proceeding, the applicant has filed his present application in this Court which seeks to commence a new course of litigation. The form of application is identical to a precedent which has been circulating in recent times. This seeks to challenge, not the decision of the Refugee Review Tribunal, but the primary decision of the delegate on the ground of a formal error in the letter of notification.
In several recent judgments I have analysed this application, and found four reasons for characterising its filing and continuation as an abuse of the processes of the Court in a situation such as the present (see, in particular, SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549). I do not propose to repeat my analysis and reasons given in that judgment, but adhere to them.
Although the applicant's history of litigation is not as extensive as that of some other litigants who have made use of this precedent, its intrinsic prospects remain just as hopeless in the present case. Wilcox J upheld my judgment in SZGMZ (supra). In another similar case, Wilcox J said:
The appeal would enjoy no prospect of success because it is obvious that the delegate's decision is now of no significance, having regard to the fact that the delegate's decision was reviewed by the Tribunal. There would be no possibility of any court, in the exercise of its discretion, intervening to set aside the delegate's decision. (see SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821 at [8]).
The applicant's outline of submissions filed in response to the present motion is an eight-page document prepared, it might appear, by the same author as the person who prepared the precedent application. It contains various legal submissions which have no merit, and which do not address the points which I have identified in my previous judgments as giving rise to abuse of process.
I have applied the authorities cited in the submission concerning the caution with which a court should approach the summary dismissal of an application.
The end of the submission seeks to protract the proceedings by raising an alleged constitutional point. However, I do not consider that a constitutional point is involved, for the reasons I gave in SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316 at [20]-[23]. Moreover, in my opinion, the application can be characterised as plainly untenable on the grounds which I have identified in SZGMZ, without my having to address any alleged constitutional point.
The character of the applicant's approach to litigation is further revealed in his oral submissions to me. In response to my questions, he said that he did not understand that his application challenged a decision of the delegate, and not the decision of the Tribunal. He said that he hoped that his present application would produce orders sending his case back to the Refugee Review Tribunal so it could be considered properly. However, he has exhausted his rights in this respect.
I conclude from the above circumstances that the applicant makes use of precedents without any thought as to their merit or effect, and purely as a means of protracting litigation which gains him a bridging visa.
Considering all the circumstances, I conclude that it is appropriate to make the orders sought by the Minister, including a general direction which would require the applicant to obtain leave of the Court before commencing any further proceeding in relation to administrative decision-making in relation to his protection visa application.
I also consider that a costs order on indemnity basis is appropriate.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 9 January 2006