S1838 of 2003 v Minister for Immigration
[2008] FMCA 873
•17 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1838 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 873 |
| MIGRATION – RRT decision – multiple applications to Tribunal after unsuccessful judicial review – Tribunal declined jurisdiction – no arguable case – application dismissed at first court date – declaration that applicant is a vexatious litigant – direction to discourage future filings. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.11, 44.12(1)(a) Migration Act 1958 (Cth) |
| S1838 of 2003 v Minister for Immigration [2005] FMCA 741 S1838 of 2003 v Minister for Immigration [2006] FMCA 63 SZASP v Minister for Immigration & Citizenship [2007] FC 771 |
| Applicant: | APPLICANT S1838 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1313 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 17 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms E Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs on an indemnity basis in the sum of $2,700.
Pursuant to r.13.11 of the Federal Magistrates Court Rules order that the applicant may not institute any further proceeding in this Court without the leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1313 of 2008
| APPLICANT S1838 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant has been present in Australia since at least 1999. On 20 August 1999 he applied for a protection visa. The delegate refused to grant that visa on 28 October 1999. The applicant sought a review by the Refugee Review Tribunal, and the Tribunal affirmed the delegate’s decision on 20 June 2000. It concluded that “the applicant’s story had been made up by his migration agent” (see Scarlett FM in S1838 of 2003 v Minister for Immigration [2005] FMCA 741 at [17]).
Since that decision, the applicant has engaged in litigation in the Courts of Australia which protracts his presence in the country, and he wishes to continue to litigate. His history of litigation shown in the papers before me is so lengthy, that I do not propose to detail it in this judgment. It can be found in the affidavit of Mrs Knight, sworn on 11 June 2008.
In brief, the validity of the Tribunal's 2000 decision was upheld by this Court and the Federal Court in 2005. Since then, the applicant has filed worthless precedents to bring litigation which has been plainly lacking in merit, and which involves various stratagems which are very familiar to this Court.
He first came back to this Court seeking review of the delegate's original decision. I dismissed that application as an abuse of process on 17 January 2006 (see S1838 of 2003 v Minister for Immigration [2006] FMCA 63). In the course of giving my reasons, I concluded:
16.In my opinion, the submissions of the applicant and his approach to litigation shown in the present matter, indicates that he is a person who brings applications to the Court without any regard to their effect or merits. I consider that it is appropriate to make the orders sought by the Minister in the notice of motion. This includes a direction that no further application for judicial review of any administrative action in relation to the applicant’s visa application should be brought without prior leave of the Court. I also consider that the circumstances show that an order for costs on an indemnity basis is appropriate.
I then made a direction which I thought would stop further litigation. Unfortunately, it was too narrowly drafted. It did not stop the applicant coming back to this Court after bringing futile further applications to the Tribunal. He has brought two such applications to the Tribunal, after unsuccessfully pursuing an appeal from my 2006 judgment.
The Tribunal refused the second application to it, on the ground of lack of jurisdiction. The applicant then sought mandamus from this Court. However, he discontinued this application shortly before it was to be listed before Scarlett FM.
The applicant then made a third, and equally futile, application to the Tribunal. In a decision made on 23 April 2008, the Tribunal recited the history of his litigation. It referred to very well established authority that the Tribunal's jurisdiction under the Migration Act does not encompass entertaining a second application for review of a delegate's decision, which has been previously affirmed in a decision of the Tribunal whose validity is beyond doubt. The Tribunal therefore formed the opinion that it lacked jurisdiction to consider the applicant’s third application to review the delegate’s 1999 decision. It was, in my opinion, undoubtedly correct for the reasons it gave.
The present application seeking review of that decision was filed on 22 May 2008, and is listed today at a first Court date before me. The applicant has been given prior notice by the Minister that summary dismissal of the application would be sought today.
In my opinion, the application presents no arguable ground for challenging the Tribunal's decision that it did not have jurisdiction to review the delegate's decision again, and there are no prospects of the applicant obtaining an order to compel the Tribunal again to consider his 1999 visa application.
I therefore shall dismiss the application under r.44.12(1)(a).
The applicant's only submission to me, today, was that he wants more time. However, I cannot understand how he has been allowed to stay in Australia for two years since my previous judgment or, at least, since it was upheld by Rares J in similar terms to mine on 11 July 2006.
In my opinion, in this case the applicant's history of litigation against the Minister plainly reveals him to be a vexatious litigant as described in Federal Magistrates Court r.13.11. I find that the present application is vexatious due to its clear lack of merits and abusive nature (c.f. Moore J’s characterisation of identical applications in SZASP v Minister for Immigration & Citizenship [2007] FC 771). I am satisfied that the applicant is a person who has habitually, persistently and without reasonable grounds instituted other similarly vexatious proceedings in this Court.
The applicant has been put on notice that the Minister would today seek an order preventing him from bringing further proceedings without the leave of the Court. In all the circumstances, I consider that I should make an order under r.13.11, rather than attempt to craft a more specific no-filing order which may again be open to ingenious circumvention. If the applicant in future has an application of merit to bring in this Court, he will first have to show it to me before it can be filed and served.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 27 June 2008
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