SZAHM v Minister for Immigration
[2007] FMCA 1176
•20 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1176 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no prospect of success and abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425 |
| Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Jayasinghe v Minister for Immigration (1997) 76 FCR 301 SZGIZ v Minister for Immigration & Anor [2007] FMCA 1175 |
| Applicant: | SZAHM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2093 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 20 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2007 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Mr J Dooley Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.10(a) and rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
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 $1,300.
No further application by this applicant to review any decision under the Migration Act relating to his application for a protection visa made on 21 June 2001, the decision of the delegate on that application, or any decision of the Refugee Review Tribunal relating to the delegate’s decision, or any notification of such decisions, or today’s decision of this Court is to be accepted for filing in this Court, except by leave of a Federal Magistrate.
The Court directs that the Minister arranged to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2093 of 2007
| SZAHM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was signed on 12 June 2007. The Tribunal's decision was one that it lacked jurisdiction and in the circumstances I understand that decision was not required to be handed down. The application filed on 6 July 2007 was clearly filed within time. The application is opposed by the Minister. The Minister's response was filed on 18 July 2007. I incorporate in these reasons paragraphs 1 to 5 of that response:
The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal made on [12 June] 2007.
The application for review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.
The applicant has no reasonable prospect of successfully prosecuting the proceeding and the proceeding should be dismissed pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules.
The proceeding is frivolous or vexatious and should be dismissed pursuant to Part 13, Rule 13.10(b) of the Federal Magistrates Court Rules.
The proceeding is an abuse of process and should be dismissed pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules.
In addition, the Minister has filed an affidavit by his solicitor, Mr Dooley, on 19 July 2007. Mr Dooley deposes as to the litigation history of this applicant and annexes a chronology. The Minister has filed in addition written submissions on 18 July 2007. I note from two letters tendered as exhibits R1 and R2 that the Minister's response, Mr Dooley's affidavit and the Minister's submissions have been served on the applicant at his postal address for service and that the applicant has been warned twice in writing that if he failed to appear his application might be dismissed.
The applicant has failed to appear this morning. The matter has been called at 9.48am, 10.12am and 10.15am. The applicant was due to appear at 9.30am. On the third occasion the applicant was called by name. There is no explanation for the non-appearance of the applicant. It is open to me in the circumstances to dismiss the application on account of the applicant's non-appearance, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
However, I have elected to proceed in the applicant's absence because, on the basis of the material before me, it appears to me that the application is a patent abuse of the Court's process and ought to be dismissed without delay on a substantive basis.
I receive the affidavit of Jonathon Mark Dooley and incorporate paragraphs 2 through to 19, as well as the annexed chronology:
I have perused the files and materials relating to the applicant held by the Department of Immigration and Citizenship (“DIAC”), the Refugee Review Tribunal (“RRT”) and the solicitors for the first respondent and make this affidavit based on the information contained in those files, as well as from my own knowledge, unless otherwise stated.
A chronology of relevant events has been drafted on the basis of these materials and is annexed hereto and marked “A”.
On 21 June 2001, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.
On 24 September 2001, a delegate of the First Respondent made a decision refusing to grant a protection visa to the applicant.
On 2 October 2001, the applicant lodged an application for review of the decision of the delegate of the First Respondent with the RRT.
On 6 March 2003, the RRT constituted by P. T. F. Gowans, handed down a decision affirming the decision of a delegate of the First Respondent to refuse to grant a protection visa to the applicant.
On 25 March 2003, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia to review the RRT decision handed down on 6 March 2003. Those proceedings were numbered SZ436 of 2003.
On 24 November 2003, Federal Magistrate Raphael dismissed the application with costs: SZAHM v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 554.
On 12 July 2004, the applicant filed a notice of appeal in the Federal Court of Australia appealing the orders and judgment of Federal Magistrate Raphael dated 24 November 2003. Those proceedings were numbered NSD37 of 2004.
On 22 April 2004, the Honourable Justice Dowsett ordered that the appeal be dismissed with costs: SZAHM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 683.
On 20 May 2004, the applicant filed an application for special leave to appeal to the High Court of Australia, seeking to appeal from the orders and judgment of Justice Dowsett given on 22 April 2004. Those proceedings were numbered S184 of 2004.
On 3 March 2005 the Honourable Justices McHugh and Heydon dismissed the application for special leave filed on 20 May 2004: SZAHM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 85.
On 25 July 2005, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia to review the RRT decision handed down on 6 March 2003. Those proceedings were numbered SYG1967 of 2005.
On 11 August 2005 the first respondent filed a notice of objection to competency in respect of the application for judicial review filed on 25 July 2005.
On 12 October 2005, Federal Magistrate Emmett dismissed the application with costs: SZAHM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1787.
On 7 May 2007, the applicant lodged a second application for review of the decision of the delegate of the First Respondent of 24 September 2001 with the RRT. Annexed hereto and marked “B” is a true copy of that application.
On 12 June 2007, the RRT constituted by Mr Steve Karas found that it had no jurisdiction to review the decision of a delegate of the First Respondent to refuse the applicant a protection visa. Annexed hereto and marked “C” is a true copy of that decision.
On 6 July 2007, the applicant filed an application for judicial review in the Federal Magistrates Court to review the decision of the RRT made on 12 June 2007 that it did not have jurisdiction. Those proceedings are the current proceedings before the Court and numbered SYG2093 of 2007.
BACKGROUND
Applicant born in Bangladesh 1 January 1965
Applicant arrived in Australia 12 June 2001
DIMA
Application for protection visa lodged 21 June 2001
Delegate’s decision 24 September 2001
RRT
Application for review lodged 2 October 2001
RRT hearing 14 February 2003
RRT decision handed down 6 March 2003
FEDERAL MAGISTRATES COURT – SZ436 of 2003
Application for judicial review filed 25 March 2003
Raphael FM dismissed application with costs 24 November 2003
FEDERAL COURT – NSD37 of 2004
Notice of appeal filed 12 January 2004
Dowsett J dismissed appeal with costs 22 April 2004
HIGH COURT – S184 of 2004
Application for special leave to appeal filed 20 May 2004
Applicant’s summary of argument and
draft notice of appeal filed 16 June 2004Respondent’s summary of argument filed and served
` 6 July 2004
McHugh and Heydon JJ dismissed application with costs
3 March 2005
FEDERAL MAGISTRATES COURT – SYG1967 of 2005
Application for judicial review filed 25 July 2005
Notice of objection to competency filed 11 August 2005
Orders of Emmett FM dismissing application with costs 12 October 2005
RRT
Application for review lodged 7 May 2007
RRT’s decision of no jurisdiction 12 June 2007
FEDERAL MAGISTRATES COURT – SYG2093 of 2007
Application for judicial review filed 6 July 2007
First respondent’s response filed 18 July 2007
Directions hearing 20 July 2007
The position is that the Tribunal had previously affirmed the decision of the delegate of the Minister rejecting the applicant's protection visa application. The decision of the Tribunal was found to be free from jurisdictional error both by this Court and the Federal Court. The High Court refused an application for special leave to appeal. The attempt by the applicant to secure review by the Tribunal for a second time after the Tribunal had exhausted its statutory function was an abuse of the Tribunal's process and the Tribunal was undoubtedly correct in finding that it lacked jurisdiction. The attempt by the applicant to obtain judicial review of the second decision of the Tribunal is an abuse of this Court's process. In all material respects this matter is indistinguishable from the case of SZGIZ v Minister for Immigration & Anor [2007] FMCA 1175 which was dealt with by me immediately before this one.
I agree with and adopt for the purposes of this judgment paragraphs 4 through to 9 of the Minister's written submissions:
In summary, the applicant lodged an application for a protection visa on 21 June 2001 and on 24 September 2001 a delegate of the first respondent made a decision not to grant a protection visa to the applicant. On 2 October 2001, the applicant applied to the Tribunal for review of the delegate’s decision, and on 6 March 2003 the Tribunal affirmed the delegate’s decision. The applicant applied to the Federal Magistrates Court for judicial review on 25 March 2003, and on 24 November 2003 Raphael FM dismissed the application with costs. On 12 January 2004 the applicant appealed from Raphael FM’s judgment, and on 22 April 2004 the Honourable Justice Dowsett dismissed the appeal. The applicant applied for special leave to appeal to the High Court of Australia on 20 May 2004, which application was dismissed by the Honourable Justices McHugh and Heydon on 3 March 2005. The applicant filed a second application in the Federal Magistrates Court on 25 July 2005 seeking judicial review in respect of the Tribunal’s decision of 6 March 2003. On 12 October 2005 Emmett FM dismissed the application with costs.
Tribunal’s decision
On 7 May 2007 the applicant lodged a second application to the Tribunal in respect of the delegate’s decision of 24 September 2001. The Tribunal noted that it had already accepted an application to review the delegate’s decision and conducted such a review.[1] It ultimately found that, as it had already discharged its functions under the Act to review the delegate’s decision of 24 September 2001, it no longer had jurisdiction in relation to that decision.[2]
The Tribunal’s conclusion that it had no jurisdiction to review the application was plainly correct.[3] The Tribunal was functus officio and its decision is free from error.[4]
Application for judicial review
The application for judicial review contains four grounds. The first two grounds assert respectively that s.424A of the Act was breached and that the applicant was not invited to a hearing. These grounds clearly misconceive the nature of the Tribunal’s finding that it did not have jurisdiction to conduct a review, and it is clear that ss.424A and 425 were not engaged.
The third and fourth grounds allege, without particulars, that the Tribunal did not consider the application according to law and that the Tribunal made some significant errors. The Tribunal’s finding that it was functus officio was plainly correct and free from error.
The background of extensive litigation and the unmeritorious nature of the application to the Tribunal demonstrate that this proceeding clearly has no reasonable prospects of success. It should accordingly be dismissed pursuant to rule 13.10(a) of the Rules. Further, the proceeding raises no arguable case,[5] it is an abuse of process[6] and it is frivolous and vexatious.[7] It is accordingly amenable to being dismissed on any of these grounds.
[1] The affidavit of Jonathon Mark Dooley affirmed 17 July 2007 at page 12.4.
[2] The affidavit of Jonathon Mark Dooley affirmed 17 July 2007 at page 12.5.
[3] SZFAS v Minister for Immigration and Citizenship [2007] FCA 771 at [4] per Moore J.
[4] Jayasinghe v Minister for Immigration (1997) 76 FCR 301 at 317 per Goldberg J; Singh v Minister for Immigration (2001) 109 FCR 18 at 28 [35] per Merkel J.
[5] Rule 44.12(1)(a) of the Rules.
[6] Rule 13.10(c) of the Rules.
[7] rule 13.10(b) of the Rules.
It does not matter in particular whether the application is dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules or rule 44.12(1)(a) of the Rules. In either case the outcome is the same. The application is hopeless and doomed to fail. The application should also be found to have been an abuse of the Court's process.
I order that the application be dismissed pursuant to rules 13.10(a) and (c) of the Federal Magistrates Court Rules.
An abuse of process having been found, the Minister should receive his costs on an indemnity basis. I agree with and adopt for the purposes of this judgment paragraph 10 of the Minister's written submissions:
An award of indemnity costs is appropriate, having regard to commencement of this case in wilful disregard of the applicant’s litigation history and the unmeritorious nature of the application.[8] The vexatious nature of this proceeding and the persistent conduct of the applicant in commencing similar proceedings demonstrate that it is appropriate that the Court order, pursuant to rule 13.11 of the Rules, that the applicant may not institute a further proceeding without the Court’s leave.
[8] Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 per Sheppard J at 233
The Minister's actual costs are $1,300. I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis fixed in that amount.
I further order that no further application by this applicant to review any decision under the Migration Act relating to his application for a protection visa made on 21 June 2001, the decision of the Delegate on that application or any decision of the Refugee Review Tribunal relating to the decision of the delegate or any notification of such decisions or today's decision of this Court be accepted for filing in this Court except by leave of a Federal Magistrate.
I further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served by ordinary pre-paid post to the applicant at his last known address for service.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 July 2007
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