S430 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1341

FEDERAL COURT OF AUSTRALIA

S430 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1341

MIGRATION – constitutional matter – dismissed

COSTS – indemnity costs – where applicant was seeking to litigate issues that had already been decided by the court on a previous occasion.

Migration Act 1958 (Cth), s 486A
Judiciary Act 1903 (Cth), s 39B

S430 of 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 707 of 2004

HILL J
13 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 707 OF 2004

BETWEEN:	S430 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	13 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent Minister’s costs on an indemnity basis.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 707 OF 2004

BETWEEN:	S430 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	13 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. For the reasons that I have already indicated I am of the view that I am bound by the High Court's decision in Plaintiff S157/2002 v Commonwealth 211 CLR 476. As the High Court indicated and as I have already noted, the provisions of s 486A of the Migration Act 1958 (Cth) are not invalid as infringing the provisions of s 75(v) of the Constitution. Insofar as there was a jurisdictional error, the provisions of 486A would not apply as the decision would not be a privative clause decision. On the other hand if there were no jurisdictional error then an applicant for relief under, under s 39B of the Judiciary Act 1903 (Cth) would necessarily fail. I would accordingly dismiss the application.

2. On the last occasion in the course of delivering judgment I indicated the chronology of this matter.  As that chronology indicates the applicant had litigated the issue of judicial review of the decision of the Tribunal through to the course of seeking special leave from the High Court, when ultimately that application was treated as dismissed because directions had not been complied with. 

3. The present application for an order nisi purports to be directed at the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) as well as the decision of the Refugee Review Tribunal (“the Tribunal”).  To the extent that the proceedings seek to have set aside the delegate's decision they are arguably misconceived in that the Tribunal in making its decision on a review was acting itself in the place of the Minister to the extent that the application purported to be an application for review of the Minister’s decision.  It raised the identical issues to those which had already been litigated.  The applicant did not suggest that there was any matter he wished to litigate now that was in any way different from his previous application.

4. The solicitor for the Minister has requested that in the circumstances I order costs to be paid on an indemnity basis, essentially on the basis that the application for statutory writs under s 39B was frivolous and bound to fail. Although this was not directly put, the application for an order nisi in the present circumstances was an abuse of process of the Court.

5. One can appreciate that persons seeking to challenge the rejection of an application for a protection visa will likely seek to avail themselves of all avenues of legal process as are open to them.  There can be no criticism of an applicant doing so.  However, when the legal proceedings involve once again seeking to agitate issues which have already been decided and indeed, through the appeal process up to an application for special leave to appeal to the High Court, what is then involved is not a use of legal proceedings to vindicate a legal right but an abuse of such proceedings. 

6. Jurisdiction to order costs is discretionary although that discretion is a judicial discretion.  In the circumstances it seems to me appropriate that the order that the applicant pay the Minister's costs be an order that those costs be paid on an indemnity basis and I so order.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             28 October 2004

Applicant appeared in person
Counsel for the Respondent:	B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 October 2004
Date of Judgment:	13 October 2004