S208 of 2003 v Minister for Immigration - [2007] FMCA 416

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S208 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 416

MIGRATION – Visa – protection visa – application to review a decision of the Refugee Review Tribunal.

PRACTICE & PROCEDURE – Jurisdiction – application out of time – where Court has no jurisdiction – abuse of process – application filed without leave – leave refused.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.477

Applicant S208/2003 v Refugee Review Tribunal [2005] FCA 1563
Applicant S208 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1722
S208/2003 v Minister for Immigration & Anor [2006] FMCA 576
Applicant S208 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 864
Applicant S208 of 2003 v MIMA & Anor [2007] HCATrans 32

Applicant:

APPLICANT S208 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 718 of 2007

Judgment of:

Scarlett FM

Hearing date:

19 March 2007

Date of last submission:

19 March 2007

Delivered at:

Sydney

Delivered on:

19 March 2007

REPRESENTATION

Solicitor for the Applicant:

Mr Prince (pro bono)

Solicitor for the Respondent:

Ms Anniwell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application, purportedly filed on 1 March 2007 without leave of the Court is dismissed.
Leave to file the application is refused.
The Applicant is to pay the First Respondent’s costs of the application on an indemnity basis in the sum of $1,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 718 of 2007

APPLICANT S208 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The substantive application before the Court is an application for review of a decision made by the Refugee Review Tribunal. The application is to review the decision that was originally made on

15 January 1999.
Not surprisingly, the solicitor for the Respondent Minister opposes the application and seeks orders dismissing the application. There are several reasons relied upon by the Minister for dismissal of the application. First, the application is out of time. As has been put in the Response filed by the solicitors for the Minister, the decision was made on 15 January 1999. Whilst the Applicant was actually notified in around January 1999, for the purpose of s.477 of the Migration Act he is taken to have been actually notified of the decision on 1 December 2005. That will not assist the Applicant because to be in time the application should have been made within 28 days of 1 December 2005. The Court certainly has no power to extend the time for the commencement of proceedings beyond 23 February 2006. As such, the application is outside the jurisdiction of the Court.
More seriously, the solicitors for the Respondent Minister raise the fact that the application is frivolous and/or vexatious and it amounts to an abuse of the Court's process. To my mind, an examination of the history of the matter shows that the question of abuse of process is a very live issue. As has been put in Response, the Applicant has sought judicial review of the Tribunal decision and the delegate's decision in numerous proceedings since then. He originally sought to challenge the Tribunal decision on 10 June 1999 by joining as a represented party in the High Court proceedings Lie v RRT & Ors S89/1999 which were representative proceedings.
Gaudron J made orders on 25 November 2002 and as a result the Applicant ceased to be a represented party in those proceedings and on 22 May 2003 he commenced proceedings in the High Court in his own name seeking orders nisi in respect of the RRT decision. That application was given the title S208/2003. Those proceedings were remitted to the Federal Court of Australia and on 4 November 2005 Bennett J refused the application with costs. The citation to that decision is Applicant S208/2003 v Refugee Review Tribunal [2005] FCA 1563.
On 24 November 2005 the Applicant filed an application for leave to appeal in respect of that judgment. That application was dismissed with costs in the Applicant's absence under s.25(2B)(bb) of the Federal Court of Australia Act 1967 (Cth) on 8 December 2005 in proceedings Applicant S208 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1722. The Applicant commenced proceedings in the Federal Magistrates Court on 23 January 2006 for review of the same decision. That application came before this Court and indeed before me on 12 April 2006.
On that occasion I dismissed the application as not being competent and as an abuse of process. I also made an order in these terms:
The Applicant is restrained from filing any application for review of the decision of the Refugee Review Tribunal made on

15 January 1999 at any registry of this Court without leave.
The citation to that decision is S208/2003 v Minister for Immigration & Anor [2006] FMCA 576.
The Applicant sought leave to appeal from that decision on 14 June 2006, but that application was dismissed with costs by Moore J on

14 June 2006. See Applicant S208 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 864.
Undaunted, the Applicant filed an application for special leave in the High Court of Australia on 11 July 2006. Gummow and Heydon JJ dismissed that application on 8 February 2007. See Applicant S208 of 2003 v MIMA & Anor [2007] HCATrans 32.
What the Applicant then did was start again by filing this application on 1 March 2007. No leave of the Court was sought or obtained. The application is a most egregious abuse of process. The Applicant cannot keep filing applications in Court to rehear matters which have already been heard and decided and appealed upon and decided and appealed upon and appeal being refused. I propose to dismiss the application, first, because there is no jurisdiction. Secondly, because the application is an abuse of process, and third, I propose to refuse leave to file the application.
What needs to be considered by the First Respondent Minister is that applicants – and they are of course only a minority – commence proceedings like this one which are totally spurious and without any justification whatsoever purely for the purpose of extending a bridging visa. The effect that they have is to run up costs and take up the time of the Court. The Federal Magistrates Court, and for that matter the Federal Court and the High Court of Australia, have quite enough work to do dealing with legitimate applications, without having to deal over and over again with applications which are nothing more than an abuse of the Court's process.
In my view, the Minister for Immigration & Citizenship must look seriously at cases like the one before me today because the question must be asked, why do applicants continue to get bridging visas from the Minister's Department when they are using that time purely to commence spurious proceedings before this Court. This Applicant has had his case heard. This Applicant has had his case decided. In my view, the Minister needs to look very seriously about such cases to take steps to remove the visa from a person who has no entitlement to one.
The application purported to have been filed on 1^st March 2007 without leave of the Court is dismissed. I refuse leave to file the application. In my view, this is an appropriate matter for costs. Costs are sought on an indemnity basis. The sum of $1,000.00 is sought, which to my mind is remarkably cheap in the circumstances. I order the Applicant is to pay the First respondent's costs in the application on an indemnity basis in the sum of $1,000.00. I require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 27 March 2007