SZAED v Minister for Immigration - [2004] FMCA 969

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAED v MINISTER FOR IMMIGRATION

[2004] FMCA 969

MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of application as vexatious – applicant withdrawing earlier judicial review application in favour of a request for ministerial intervention.

Federal Magistrates Court Rules 2001 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.417

SZBXA v Minister for Immigration [2004] FMCA 96
VQAN v Minister for Immigration [2003] FCA 1541

Applicant:

SZAED

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1510 of 2004

Delivered on:

13 December 2004

Delivered at:

Sydney

Hearing date:

13 December 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms L Gazi
Australian Government Solicitor

INTERLOCUTORY ORDERS

The judicial review application is dismissed as vexatious, pursuant to rule 13.10(b) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1510 of 2004

SZAED

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application filed in court on 27 August 2004 by the respondent Minister. The Minister seeks the summary dismissal of an application for judicial review filed on 21 May 2004. That judicial review application sought review of a decision of the Refugee Review Tribunal (“the RRT”). The Minister asserts that the judicial review application is frivolous or vexatious and/or is an abuse of the process of the court. The application is supported by an affidavit by Elizabeth Warner which I received as evidence for the purposes of today's proceedings. In addition, Ms Gazi, who appeared today for the Minister, presented written submissions and also provided short oral submissions.
Relevant background information is contained in paragraphs 1 to 7 of Ms Gazi's written submissions which I adopt as background for the purposes of today's hearing:
The applicant is a citizen of Pakistan who arrived in Australia on 11 June 2000, on a visitor (Class TR) visa, using a passport issued on 15 July 1999. On 10 July 2000, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.
The applicant’s protection visa application was refused by a delegate of the respondent on 31 August 2000. The applicant sought review of that decision in the RRT. By a decision dated 20 December 2002, the RRT affirmed the decision of the delegate not to grant the applicant a protection visa.
On 13 February 2003, the applicant filed an application under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) in the Sydney Registry of the Federal Magistrates Court [Affidavit of Elizabeth Warner, paragraph 2].
On 7 August 2003, the applicant discontinued these proceedings by filing by facsimile a Notice of Discontinuance dated 6 August 2003 [Affidavit of Elizabeth Warner, paragraph 4].
On 8 August 2003, the applicant agreed to pay the respondent’s costs in the sum of $500. [Affidavit of Elizabeth Warner, paragraph 5].
On 11 August 2003, Raphael FM made orders in accordance by consent that the applicant pay the respondent’s costs as agreed in the sum of $500. [Affidavit of Elizabeth Warner, paragraph 6].
On 21 May 2004, the applicant filed a further application under s.39B of the Judiciary Act in this Court, seeking review of the decision of the RRT dated 20 December 2002 [Affidavit of Elizabeth Warner, paragraph 8].
Ms Gazi submits that having regard to the earlier proceedings in this Court in respect of the same RRT decision the present judicial review application is frivolous or vexatious and is also an abuse of the Court's process. In support of that proposition she relies upon my earlier decision in the matter of SZBXA v Minister for Immigration [2004] FMCA 96. In that case there have been numerous earlier legal proceedings involving the same RRT decision. In this case it appears that there has been only one earlier decision being a proceeding before the Court that was discontinued approximately two weeks before the final hearing date. In the circumstances of this matter, if the only circumstance was the earlier proceeding that was discontinued I would not accept that the present proceeding is an abuse of process. The mere fact that there has been an earlier judicial review application which was terminated without a final hearing does not of itself establish that a second judicial review application is frivolous or vexatious or an abuse of process. Something more is required.
The Minister's application is opposed by the judicial review applicant who has himself prepared written submissions. The applicant made oral submissions and I asked him questions about his written submissions. It was quickly apparent that the written submissions had been prepared with the assistance of someone else and the submissions do not represent the applicant's view but, rather, the views of someone else that have been suggested to him.
The application for judicial review filed on 21 May 2004 sets out six grounds of review which might have some substance if they were supported by particulars. I was initially minded to give the applicant time to produce particulars of the grounds of review advanced. However, when I explored the issue with the applicant he told me that he was not able to usefully add anything to the grounds of review set out in his application. That leads me to the view that the grounds contained in the present application, like the applicant's written submissions, have been suggested to him by someone else. In the circumstances, there is little purpose in giving the applicant further time to expand on the grounds.
The applicant told me that his earlier application for judicial review in this Court was discontinued following advice he received from his panel adviser, Mr Wootton. The applicant did not reveal the detail of that advice but said that Mr Wootton had indicated that there were matters that the applicant could properly put before the Minister in an application under s.417 of the Migration Act 1958 (Cth). It was in the light of that advice that the applicant discontinued his earlier judicial review proceedings and made application to the Minister under s.417. The applicant told me that his application under s.417 had been rejected by the Minister. It appears that, in the light of that rejection, the applicant decided to make a second judicial review application.
In my view, these additional circumstances establish that the present judicial review application is vexatious. The applicant does not have any understanding of the grounds of review that he has advanced. He is not able to support those grounds. He has simply relied on others to suggest legal arguments to him. Further, the making of the application to the Minister under s.417 has been held by the Federal Court to constitute an acceptance of the RRT decision: VQAN v Minister for Immigration [2003] FCA 1541 at [15].
Having discontinued his earlier judicial review proceedings and having made application under s.417 and having commenced a further judicial review application in circumstances where the applicant is unable to support it, the Minister should not be vexed further by having to deal with it.
I will therefore dismiss the judicial review application as vexatious pursuant to rule 13.10(b) of the Federal Magistrates Court Rules 2001 (Cth).
On the question of costs, the application having been dismissed, Ms Gazi properly seeks an order for costs. She has indicated the Minister's solicitor and client costs are of the order of $2,300. I am satisfied that on a party and party basis costs of $1,500 have been properly and reasonably incurred on behalf of the Minister. The applicant did not wish to be heard in opposition to an order for costs.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $1,500.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 December 2004