S76 of 2003 v Minister for Immigration

[2007] FMCA 1188

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S76 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1188

MIGRATION – Applicant failed to appear – whether proceeding an abuse of process – whether Refugee Review Tribunal had jurisdiction to conduct review following a valid decision by an earlier differently constituted Refugee Review Tribunal – whether Court should prevent further filings by the applicant seeking judicial review of various decisions.

Federal Magistrates Court Rules 2001 r. 44.12
Migration Act 1958 (Cth)

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76FCR 301
SZASP v Minister for Immigration and Citizenship [2007] FCA 771

Applicant: APPLICANT S76 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 808 of 2007

Judgment of: Emmett FM

Hearing date: 12 July 2007

Date of last submission: 12 July 2007

Delivered at: Sydney

Delivered on: 12 July 2007

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms D. Watson, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG808 of 2007

APPLICANT S76 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant has failed to appear at this morning’s scheduled hearing.

2. The First Respondent requests that the matter proceed and seeks an order that the proceeding before this Court commenced by way of application filed on 9 March 2007 be dismissed as an abuse of process of the Court.

3. There has been no communication received from the Applicant either to the Court, my Chambers or the lawyers for the First Respondent requesting any adjournment of today’s hearing. The Applicant attended a directions hearing before me on 28 March 2007, at which time the Applicant was granted leave to file and serve an amended application and any further evidence upon which he sought to rely. There has been no document filed by or on behalf of the Applicant since that date. The matter was set down for hearing at the directions hearing on 28 March 2007 to commence at 10.15am before me for a hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001.  It is now 11.20am and the Applicant has been called on at least 3 occasions. In the circumstances, I am satisfied that the Applicant has notice of this morning’s hearing and, for whatever reason, has chosen not to appear.

4. Further, the directions made on 28 March 2007 put the Applicant on notice that in the event that he did not appear at today’s hearing the matter may be dealt with and dismissed in his absence. Accordingly, the matter will proceed in the absence of the Applicant. 

5. In support of the application by the First Respondent for an order that the proceeding be dismissed as an abuse of process, the First Respondent reads the affidavit of Dale Jennifer Watson sworn 30 May 2007.  Ms Watson's affidavit annexes a significant litigation history between these parties arising from the judicial review of a Refugee Review Tribunal decision handed down on 28 March 2002.

6. Judicial review of that decision has included a determination according to law by Branson J on 26 August 2004, where orders nisi were refused.  An appeal from the decision of Branson J was dismissed by the Full Court of the Federal Court on 4 July 2005 and a special leave application to the High Court of Australia was refused on 14 November 2005. 

7. On 6 December 2006, the Applicant lodged a further application for review of the Delegate's decision, the subject of the Refugee Review Tribunal's decision, handed down on 28 March 2002 refusing the Applicant a protection visa. The decision by the Delegate was made on 5 June 1997.

8. The Refugee Review Tribunal's decision the subject of this proceeding, is annexed to the affidavit of the Applicant sworn on 9 March 2007 and filed in support of this application for review of that decision.  The Refugee Review Tribunal, having recited the history of the review by the earlier constituted, Refugee Review Tribunal, handed down on
   28 March 2006, and the history of the judicial review of the earlier decision of the Refugee Review Tribunal, then considers the relevant legislation.

9. The Refugee Review Tribunal accepted the Applicant's application for review and wrote to the Applicant on 15 January 2007 inviting submissions on the issue raised by the Refugee Review Tribunal that it did not have jurisdiction as there had already been a valid review of the Delegate's decision by the Refugee Review Tribunal.  The Refugee Review Tribunal noted in its decision that a response was received from the Applicant on 8 February 2007. 

10. The Refugee Review Tribunal concluded that, as it had already discharged its functions under the Migration Act 1958 (Cth) on
    28 March 2006 by the decision of the earlier constituted Refugee Review Tribunal, it no long had jurisdiction in relation to that decision. 

11. The Refugee Review Tribunal referred to Goldberg J decision in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76FCR 301 at page 311 where his Honour stated that:

    “…once the statutory function is performed there is no further function or act for the person authorised under the statute to perform.”

12. The grounds relied upon by the Applicant are identified in his application for judicial review to this Court are as follows:

    “1. the Refugee Review Tribunal failed to accord the natural justice.

    2. that the Refugee Review tribunal made error of law being jurisdictional error in that the Tribunal identified the wrong issue to determine my case.

    3. that the Refugee review Tribunal failed to exercise its jurisdiction under Migration Act and/or acted in excess of its jurisdiction.”

13. The grounds make bare assertions of error unsupported either by particulars or evidence. 

14. To the extent that ground 1 asserts that the Refugee Review Tribunal “failed to accord natural justice”, I note that the Refugee Review Tribunal wrote to the Applicant prior to making its decision inviting submissions on the issue of whether or not it had jurisdiction and noted that a response had been received by the Applicant. 

15. There is no error apparent on the face of the Refugee Review Tribunal’s decision, including the conduct of its review. In the circumstances, I am satisfied that the proceeding, commenced by way of application filed by the Applicant on 9 March 2007 has no prospect of success.

16. Having regard to the litigation history of the Applicant in commencing this proceeding and in the light of the litigation history between the parties in relation to judicial review of the Refugee Review Tribunal's decision handed down on 28 March 2002, in my view it is an abuse of the Court's process for the Applicant to have commenced the proceeding and allowing the continuation of such a proceeding is likely to bring the Court into disrepute (SZASP v Minister for Immigration and Citizenship [2007] FCA 771).

17. The First Respondent seeks an order that the Applicant be prevented from filing any further proceeding seeking judicial review of either the Delegate's decision dated 5 June 1997 or either of the decisions of the Refugee Review Tribunal and preventing the filing of any application that seeks judicial review of any decision of the Refugee Review Tribunal involving the decision relating to an application for review of the Delegate's decision dated 5 June 1997 and also in respect of any application for review of that Delegate's decision. 

18. Having regard to the finding of this Court that the Applicant’s proceeding is an abuse of the Court’s process and the reasons for that finding, I am satisfied that the orders sought by the First Respondent should be made.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  13 July 2007