SZACN v Minister for Immigration & Anor
[2007] FMCA 339
•16 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZACN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 339 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant lodging second review application after Tribunal decision found to be valid – Tribunal having no jurisdiction to conduct a second review – judicial review application frivolous, vexatious and an abuse of process. PRACTICE AND PROCEDURE – Whether the applicant should be declared a vexatious litigant considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth) |
| SZACN v Minister for Immigration [2003] FMCA 185 SZACN v Minister for Immigration [2003] FCA 836 SZACN v Minister for Immigration [2005] FMCA 1047 SZACN v Minister for Immigration [2005] FMCA 1895 SZACN v Minister for Immigration [2005] FCA 1330 SZACN v Minister for Immigration [2005] HCATrans 382 SZACN v Minister for Immigration [2006] FCA 564 SZACN v Minister for Immigration 2006] HCATrans 645 SZDMO v Minister for Immigration [2006] FMCA 617 SZDMO v Minister for Immigration [2006] FCA 989 SZEBS v Minister for Immigration [2006] FCA 456 SZIIV v Minister for Immigration [2006] FMCA 322 |
| Applicant: | SZACN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG672 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 16 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
INTERLOCUOTRY ORDERS
Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there be an immediate hearing under rule 44.12.
The Court declares that the application filed on 27 February 2007 is frivolous, vexatious and an abuse of the Court’s process.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1200
Any further application by this applicant to the Court in relation to any decision under the Migration Act 1958 (Cth) related in any way to his protection visa application lodged on 28 June 2000 is not to be accepted for filing by the Court, except by leave of a Federal Magistrate.
Any such application is to be served upon the Attorney-General of the Commonwealth with a view to the Attorney-General considering whether an application should be made pursuant to rule 13.11 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG672 of 2007
| SZACN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 27 February 2007. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 21 January 2007. The applicant asserts actual notification of that decision on 2 February 2007. On that basis, I find that the application was filed within time. The Tribunal found that it had no jurisdiction to deal with the review application to it. This was because the Tribunal had previously reviewed the same decision of the delegate. That previous decision of the Tribunal had been held by the Courts to have been a valid one.
The Minister filed a response to the application on 5 March 2007. The terms of that response are important and it is appropriate that I quote them in full:
1.The application is frivolous and/or vexatious, and it amounts to an abuse of the courts process:
a)The applicant arrived in Australia on 6 June 2000. He applied for a protection visa on 28 June 2000.
b)That application was refused by a delegate of the Minister on 30 June 2000 (“the delegate’s decision”).
c)On 12 July 2000, the applicant sought review of the delegate’s decision but, in a decision made by the Refugee Review Tribunal on 30 October 2002 and handed down on 21 November 2002, the RRT affirmed the delegate’s decision (“the first RRT decision”).
d)The applicant has since sought judicial review of the first RRT decision and the delegate’s decision in numerous proceedings, all of which were unsuccessful:
Particulars
i) On 16 December 2002, the applicant filed an application for review in the Federal Magistrates Court of Australia at Sydney (SZ1321 of 2002). That application was dismissed with costs by Raphael FM on 12 May 2003: [2003] FMCA 185.
ii) On 30 May 2003, the applicant filed a notice of appeal in the New South Wales District Registry of the Federal Court of Australia from the judgment of Raphael FM ((N647 of 2003). That appeal was dismissed with costs by Moore J on 8 August 2003: [2003] FCA 836.
iii) On 2 September 2003, the applicant filed an application for special leave in the High Court of Australia (S477 of 2003). That application was deemed abandoned on 15 March 2004.
iv) On 29 March 2004, the applicant filed a further application for special leave to appeal to the High Court from the judgment of Moore J (S107 of 2004). That application was refused with costs by Hayne and Heydon JJ of the High Court of Australia on 27 May 2005: [2005] HCATrans 382.
v) On 20 June 2005, the applicant once more commenced proceedings in the Federal Magistrates Court, seeking review of the first RRT decision (SYG1597 of 2005). On 27 July 2005, Barnes FM dismissed the application with costs on the basis that the applicant was estopped from bringing the proceedings, and that the proceedings amounted to an abuse of the court’s process: [2005] FMCA 1047.
vi) On 31 August 2005, the applicant filed an application for leave to appeal from the judgment of the Barnes FM with the Federal Court of Australia (NSD1548 of 2005). That application was dismissed with costs by Tamberlin J on 19 September 2005: [2005] FCA 1330.
vii) On 11 October 2005, the applicant once again commenced proceedings in the Federal Magistrates Court of Australia, this time seeking judicial review of the delegate’s decision (SYG2911 of 2005). This application was dismissed with costs by Raphael FM on 12 December 2005, when his Honour also made orders to the effect that the Registry not accept for filing without prior leave of the court any further application for review of the first RRT decision, the delegate’s decision, or any notification of either the RRT of delegate’s decisions: [2005] FMCA 1895.
viii) On 23 December 2005, the applicant filed with the Federal Court an application for leave to appeal from this latest judgment of Raphael FM (NSD2630 of 2005). This application was dismissed with costs by Black CJ on 4 May 2006: [2006] FCA 564.
ix) On 29 May 2006, the applicant filed an application seeking special leave to appeal to the High Court of Australia from the judgment of Black CJ (S158 of 2006). This application was refused by Gummow and Heydon JJ on 15 November 2006: [2006] HCATrans 645. Gummow J, who delivered the Court’s brief reasons for the orders observed that “(a)ll the litigious steps taken by the applicant since 27 May 2005 have been abuses of process”.
e)On 30 November 2006, the applicant purported to make an application to the RRT for review of the delegate’s decision, which was already the subject of review by the RRT in the first RRT decision.
f)On 31 January 2007, the RRT decided that it did not have jurisdiction relation to the applicant’s application (“the second RRT decision”).
g)The second RRT decision is the subject of the present application.
2.The application has not raised an arguable case for the relief claimed [Rule 44.12(1)(a)].
Consistently with that response and on the basis that it was established that the applicant had been served with it on or about 6 March 2007, the Minister sought an immediate show cause hearing today being the first court date on the application. I granted that request over the objections of the applicant. The position in this case is clear. Consistently with the decisions of this Court in SZIIV v Minister for Immigration [2006] FMCA 322 and SZDMO v Minister for Immigration [2006] FMCA 617 and the decisions of the Federal Court in SZDMO v Minister for Immigration [2006] FCA 989 and SZEBS v Minister for Immigration [2006] FCA 456 among others, it is obvious that the decision of the Tribunal that it lacked jurisdiction was correct.
The attempt by the applicant to have the Tribunal review the decision of the delegate for a second time was doomed to failure. His application to this Court, seeking review of the obviously correct decision of the Tribunal, is also doomed to failure. Moreover, the present application is a transparent attempt to circumvent previous orders made by this Court preventing the applicant, without leave, from further agitating in this Court the question of the validity of the first Tribunal decision. Plainly, the applicant wishes to remain in Australia for as long as possible and is using the Court’s process to achieve that objective. In so doing, he is abusing this Court’s process as he has also abused the process of the Tribunal. The present application is frivolous and vexatious as well as being an abuse of the Court’s process.
The Minister should not be constantly vexed by applications of this nature. The Court should act promptly and firmly to deal with them. I accept the submission of Mr Markus for the Minister that the most recent five of the nine proceedings the applicant has instituted that relate, in some way, to his protection visa application, have been an abuse of process. This raises a real question whether the applicant should be declared a vexatious litigant pursuant to rule 13.11 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). Such an order can be made by the Court of its own motion or on the application of the Commonwealth Attorney-General or Solicitor‑General or of an Attorney-General or a Solicitor-General of either a state or territory. Such an application may also be made by the Registrar of the Court. The test for determining whether a person should be declared a vexatious litigant is whether the person has habitually and persistently, and without reasonable grounds, instituted vexatious proceedings in the Court.
If a person is declared a vexatious litigant, the person may be prevented from instituting any further proceedings in the Court without leave. That is a harsh step to take and should not be lightly taken. Neither the Minister nor a law officer nor a Registrar of the Court has sought such an order, although the Minister invites the Court to make that order of its own motion. There is, however, an alternative which may deal with the problem as effectively. That is to expand upon the order previously made by Raphael FM on 12 December 2005, which sought to prevent the applicant making further applications in the Court in relation to decisions on his protection visa application, without leave. That order did not exhaustively deal with the range of applications that might be made and the gap so left open has been taken advantage of by the applicant. The gap should now be closed. If the applicant persists in making frivolous and vexatious applications to the Court which abuse the Court’s process, then the Court will have no alternative but to consider again whether the applicant should be declared a vexatious litigant.
The Court declares that the application filed on 27 February 2007 is frivolous, vexatious and an abuse of the Court’s process. I will order that the application is dismissed. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,250.
The Court directs that any further application by this applicant to the Court in relation to any decision under the Migration Act 1958 (Cth), related in any way to his protection visa application lodged on 28 June 2000, is not to be accepted for filing by the Court, except by leave of a Federal Magistrate. Any such application is to be served upon the Attorney‑General of the Commonwealth with a view to the Attorney‑General considering whether an application should be made pursuant to rule 13.11 of the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 March 2007
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