S1836 of 2003 v Minister for Immigration
[2006] FMCA 65
•17 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1836 OF 2003 v MINISTER FOR IMMIGRATION | [2006] FMCA 65 |
| 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 2001, r.13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.423(2), 424A, 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
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844
SZGMZ v Minister for Immigration [2005] FMCA 1549
| Applicant: | APPLICANT S1836 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3143 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 17 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms E Warner Knight |
| 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 $4,400.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 28 February 2001 reference N00/35644 or for review of the decision of the delegate of the respondent dated 27 October 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 |
SYG3143 of 2005
| APPLICANT S1836 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The substantive application in this matter was filed on 27 October 2005, and seeks orders by way of judicial review in relation to a decision made by a delegate of the Minister on 27 October 1999. The delegate refused an application made by the applicant for a protection visa. The applicant, who is a citizen of Bangladesh, had arrived in Australia on 23 July 1999 and had made his visa application shortly thereafter.
The application was brought in the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) and s.39B of the Judiciary Act 1903 (Cth). Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The application was given a first court date before me on 30 November 2005. On that occasion I gave directions for the listing of the proceeding today for the hearing of a foreshadowed interlocutory application by the Minister seeking the summary dismissal of the application. I am satisfied that the documents relating to that application, including a written submission by the Minister’s solicitors containing their argument, were served by courier on the applicant’s address for service in time for him to prepare his submissions for today.
The Minister contends that the substantive application should be dismissed under r.13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of process, due to a history of litigation engaged in by the applicant in relation to decision‑making on his visa application, and by reason of the lack of merit in the application. I propose to consider in relation to the latter aspect whether the 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 is as follows.
There is no doubt that he received actual notice of the delegate’s decision, since he lodged an application for merits review by the Refugee Review Tribunal (“the Tribunal”) within the mandatory time limit.
The Tribunal conducted a hearing on the same day as the same Tribunal member conducted a hearing in relation to a similar appeal by the applicant’s brother. In a decision handed down on 4 July 2000, the Tribunal rejected the claims made by the applicant, significantly on the basis that his brother had no memory of relevant events.
The applicant filed an application for judicial review in the Federal Court and, by consent, Whitlam J on 11 October 2000 remitted the matter to the Tribunal for redetermination. The basis of his Honour’s order is unclear on the papers before me, but it seems likely that it was due to the failure of the Tribunal to give proper notice of its intention to rely on the evidence given by the brother in his separate application.
On the rehearing, the Tribunal served the applicant with a s.424A invitation in relation to the information from the transcript of the earlier hearing involving the brother. The applicant also attended a further hearing conducted by the new member.
In a decision dated 8 February 2001 and handed down on 28 February 2001, the Tribunal concluded that the applicant had not presented a truthful account of his circumstances in Bangladesh. It did not accept his claim that he was a prominent political figure in the Jatio Party, either in his own region or elsewhere in Bangladesh. It did not accept that he had been of particular interest and concern to the Awami League nor to other political parties in Bangladesh. It did not accept that he was the subject of a “false case”, nor that he had been attacked by Awami League supporters in 1999, nor that he or members of his immediate family had been attacked. For reasons which the Tribunal explained, it considered these claims lacked credibility and had been “concocted by the applicant for the purpose of supporting his protection visa application”.
According to an affidavit by the Minister’s solicitor in support of the present motion, the applicant then engaged a solicitor, Mr Jyoti Bharati, to commence proceedings in the High Court for an order nisi in relation to the Tribunal’s decision. The affidavit in support is in evidence before me. It contends that the Tribunal erred by taking into account a written submission by the Secretary of the Immigration Department which was given to the Tribunal under s.423(2) of the Migration Act. However, the affidavit does not provide evidence for that contention. In the event, the contention was not pressed, since the application was dismissed by consent orders of Emmett J made on 30 April 2004.
On 12 May 2004 the applicant commenced in this Court a second judicial review proceeding challenging the Tribunal’s decision. The grounds stated in the application were that the Tribunal failed to take into account a factual aspect in the applicant’s claims, and failed to identify whether the applicant had a real chance of harm in the future. Those contentions also were not pressed by the applicant, since on 3 November 2004 he filed a notice of discontinuance and was subsequently ordered to pay the respondent’s costs in the sum of $3000.
The applicant has now filed his present application. This is not a further challenge to the Tribunal’s decision, but seeks to challenge the earlier decision of the delegate. The application duplicates a form of application which has circulated in Sydney in recent months, and which I have addressed in summary dismissal applications in 10 previous cases. The application alleges that the delegate’s decision was invalid due to a failure to follow a procedure in relation to the notification of the delegate’s decision. I gave an analysis of the application in SZGMZ v Minister for Immigration [2005] FMCA 1549 (“SZGMZ”), which I shall not repeat, but adopt for the purposes of this judgment.
In SZGMZ I identified four reasons why the application is an abuse of process in circumstances such as the present: where the applicant had previously pursued merits appeal and then judicial review in relation to a Refugee Review Tribunal decision. I maintain the opinions I expressed in that judgment. It was upheld by Wilcox J in SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844. In a similar case SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821, Wilcox J upheld my orders, and said at [8]:
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.
In my opinion, for the reasons I have indicated in SZGMZ, the present application is equally hopeless, and is an abuse of process. I consider that the orders sought by the Minister should be made.
The applicant has appeared today. He had no response to my attempts to focus his attention on the fact that his present application has no apparent purpose, since it is directed at the delegate’s decision and not the Tribunal’s decision, which was the effective decision in relation to his protection visa entitlements. His submissions amounted to a continued affirmation of his claims to be a refugee, and a contention that the Tribunal had made errors in not believing him. In my opinion, these submissions confirm my opinion that he has filed his present application without any attempt to understand its effect, and probably for a collateral purpose only.
In view of his apparent attitude to litigation, and his refusal to accept the finality of the decision of the Tribunal, I consider it also appropriate to give a direction in broad terms preventing, without the prior leave of the Court, the receipt in the Registry of this Court of any further application concerning decision‑making in relation to his protection visa application.
I also consider that in the circumstances indicated above, costs should be ordered on an indemnity basis.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 25 January 2006
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