S1838 of 2003 v Minister for Immigration

[2006] FMCA 63

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1838 of 2003 v MINISTER FOR IMMIGRATION [2006] FMCA 63

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

Federal Court of Australia Act 1976 (Cth), s.25(2B)(bb)(ii)
Federal Magistrates Court Rules 2001, r.13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A

Applicant S1838 of 2003 v Minister for Immigration [2005] FMCA 741
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 S1838 OF 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG3153 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

1. The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court. 

2. The applicant must pay the respondent’s costs on an indemnity basis in the sum of $3000. 

3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 20 June 2000 reference N99/30863 or for review of the decision of the delegate of the respondent dated 28 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

SYG3153 of 2005

APPLICANT S1838 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The principal application in this matter was filed on 28 October 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) and s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).  The application seeks orders by way of judicial review of a decision made by a delegate of the Minister on 28 October 1999.  The delegate refused an application made by the applicant for a protection visa.  He had arrived in Australia on 23 July 1999 from Bangladesh and lodged his application for a protection visa soon thereafter. 

2. The application was given a first court date before me on 30 November 2005.  On that occasion I set the matter down for hearing today of a foreshadowed interlocutory application by the Minister seeking the summary dismissal of the application.  I am satisfied that the Minister’s notice of motion, affidavit in support and written submissions have been received by the applicant in time for him to consider his response. 

3. The Minister contends that the principal application should be dismissed under r.13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of the process of the Court due to the applicant’s history of litigation in relation to decision‑making on his protection visa application and due to the absence of merit.  In relation to the latter aspect, I have considered 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]).

4. The applicant’s history of litigation in relation to his protection visa application is as follows. 

5. There is no doubt that he did receive actual notice of the delegate’s decision, since he filed an application for merits review by the Refugee Review Tribunal (“the Tribunal”) within the mandatory time limit. 

6. The applicant attended a hearing before the Tribunal which the Tribunal described in its reasons.  The Tribunal formed the view that the applicant made a spurious claim to suffer a hearing disorder, so as to avoid having to answer embarrassing questions concerning his claims in his refugee visa application.  It said that he was “totally unable at hearing before the Tribunal to restate any of those claims apart from saying that he had joined the Jatiya Party and was attacked.  He demonstrated a total ignorance of the Jatiya Party”.  The applicant also conceded to the Tribunal that matters contained in his visa application were not true, and had been inserted by his adviser. 

7. The Tribunal’s decision affirming the delegate’s decision was handed down on 20 June 2000. 

8. According to the affidavit filed by the Minister in support of her motion for summary dismissal, the applicant took no steps to challenge the decision of the Tribunal until 11 May 2004.  However, noting the pseudonym which the applicant has been given by the Registry, I deduce that he was involved in at least one previous application for judicial review.  His brother, who has the pseudonym Applicant S1836 of 2003, acquired that name by bringing an application for an order nisi in the High Court, which was remitted to the Federal Court and dismissed by consent.  It is possible that the applicant has followed a similar path, but the history of his application is not traced in the evidence before me. 

9. Whatever his previous litigation, on 11 May 2004, the applicant filed an application in this Court invoking its jurisdiction under s.483A of the Migration Act and s.39B of the Judiciary Act, seeking review of the decision of the Tribunal. The application contended that the Tribunal’s hearing was not fair due to the applicant suffering a hearing disorder. It alleged:

   The applicant claims that he could not understand about the issues raised at the hearing.  He was totally confused about the issues raised at the time of hearing. 

10. The application came for hearing before Scarlett FM.  His Honour dismissed the application on 18 May 2005, and gave reasons (see Applicant S1838 of 2003 v Minister for Immigration [2005] FMCA 741). He said:

    [18]I am not satisfied that the Applicant’s hearing difficulties were such that he could not understand the proceedings.  I am satisfied that the Applicant should have been able to understand what the proceedings were about and that appropriate arrangements had been made to consider the fact that he is illiterate.  The Tribunal member acted correctly, in my view, in considering whether an adjournment for a medical examination was warranted and the reason why the Tribunal member decided not to take that step is a reason that was open to the Tribunal member based on his observations of the Applicant before him. 

    [19]In short, the Applicant has not proved that he suffered from such a medical problem that he could not understand the proceedings or present his case properly.  The Applicant has not shown that the Tribunal made a jurisdictional error.  As there is no reviewable error, the application must be dismissed. 

11. The applicant filed a notice of appeal on 6 June 2005, adopting a commonly used precedent which had no apparent relation to either the decision of the Tribunal or the judgment of Scarlett FM. On 21 July 2005 the appeal was dismissed by order of Branson J pursuant to s.25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), which allows dismissal if the appellant fails to attend a hearing.

12. As I have indicated, soon after that order was made, the applicant brought the present application.  It duplicates a form of application which has circulated in recent months in Sydney, and which I have addressed in 11 previous judgments on motions such as the present. 

13. The application purports to challenge, not the decision of the Refugee Review Tribunal, but the preceding decision of the delegate on the ground of a formal defect in the notification of the delegate’s decision.  I have provided an analysis of the application, and given four reasons for forming an opinion that it is doomed to failure, and is an abuse of the process of the Court, in my judgment in SZGMZ v Minister for Immigration [2005] FMCA 1549 (“SZGMZ”).  I adhere to those opinions, and consider that they are applicable to the present application brought by this applicant in the circumstances I have indicated above. 

14. My judgment in SZGMZ was upheld by Wilcox J in SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844. In a similar matter, SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821, Wilcox J 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. 

15. The applicant attended today’s hearing.  He had no meaningful response to my invitation that he explain the purpose of the present proceeding challenging the delegate’s decision rather than the Tribunal’s decision.  His submission was that the position was bad in Bangladesh, and the Court should continue his rights of residence in Australia. 

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 certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  25 January 2006