SZAMP v Minister for Immigration
[2006] FMCA 881
•7 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAMP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 881 |
| MIGRATION – Review of decision by delegate of first respondent – delay of 8 years – 10 prior proceedings in all federal courts seeking review of Refugee Review Tribunal decision – abuse of process – indemnity costs. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.66(4) Federal Magistrates Court Rules 2001, r.13.10; sch.1 |
| Twist v Randwick Municipal Council (1976) 136 CLR 106 Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260 Applicant S506 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 450 |
| First Applicant: | SZAMP |
| Second Applicant: | SZAMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3495 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 May 2006 |
| Date of last submission: | 31 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 July 2006 |
REPRESENTATION
| The applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms K. Crawley, Clayton Utz Lawyers |
ORDERS
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $4119.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3495 of 2005
| SZAMP |
First Applicant
| SZAMQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Division 2 of Pt. 8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 28 March 1998.
The application for a protection visa was refused on the basis that the first named applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The second named applicant is the wife of the first named applicant and her application is dependent on the outcome of her husband’s application for a protection visa.
On 23 December 1997 the applicant lodged an application for a protection visa.
On 27 April 1998, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). On 2 February 2002, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. Between 4 March 2002 and
14 November 2005, the applicants lodged several proceedings in this Court, the Federal Court of Australia and the High Court of Australia.
On 24 November 2005, the applicant filed an application in this Court seeking judicial review of the Delegate’s decision.
The hearing before this Court
Before the Court were 2 interlocutory applications and the applicants’ proceeding seeking judicial review of the Delegate’s decision. They are identified below as follows:
a)
An application by the applicants filed in this Court on
12 December 2005 seeking an order to join to the proceedings their daughter who was born on the 17 October 2000 in Sydney, Australia;
b)An application filed by the applicants on 24 November 2005 seeking judicial review of a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous (“the Delegate”) in respect of a decision stated by the first named applicant (“the Applicant”) in his application for judicial review to have been notified to him on 28 March 1998.
c)
An interlocutory application filed by the First Respondent on
11 May 2006 seeking an order that the applicants’ application filed on 24 November 2005 be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 on the basis that no reasonable cause of action is disclosed, that the proceeding is frivolous or an abuse of process, that there has been an inordinate and unexplained delay by the applicants in seeking review of the decision of the delegate of the Minister of Immigration and Multicultural Affairs (“the Delegate”);
a) The Applicant’s application for joinder
The applicants sought an order joining the applicants’ daughter as the third applicant. The First Respondent submitted that having regard to the unique interest of the child in the litigation of the applicants and with a view to avoiding a multiplicity of proceedings, the child could be joined to the proceeding and the Applicant be appointed as the child’s litigation guardian, on the basis that the Applicant is the child’s father and has no claim inconsistent with the interests of the child. The First Respondent also undertook to the Court that no cost consequence would be visited personally upon the child as a result of her involvement in the litigation. Accordingly, by consent the child was made the third applicant. Both the second and third named applicants’ applications depend on the success of the Applicant, as he is the primary applicant for a protection visa.
b) The applicants’ application before this Court for judicial review of the Delegate’s decision
The application before this Court for hearing is for review of the decision of the Delegate. The application states that the Applicant was notified of the decision on 28 March 1998. The application relied on the following five grounds:
“1. A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified to the applicant and therefore, the procedures that were required by law to be observed in connection with the making of the decision were not observed.
2. The delegate who purported to make the decision did not have jurisdiction to give the decision. The Minister does not have a power to take this decision into effect. S66(1) and s66(2) of the Migration Act 1958 was not observed.
3. The decision was infected by error of law. The decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
4. The application is late. However, the applicant refers to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 and Plaintiff S157 of 2002 v Commonwealth 92003) 195 ALR 24.
5. This application is not vexatious nor an abuse of process. A delegate’s decision can be reviewed by the court under certain Circumstances. The Court has previously reviewed decisions be the delegate in the matters of:
Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292,
SZCTH v Minister for Immigration (No.1) [2004] FMCA 211
NAMG v Minister for Immigration (No 1) [2003] FMCA 541).
Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132”
Ground 1 appears to assert that the rules of natural justice were not complied with in that the Applicant was not notified in accordance with the Migration Act 1958 (Cth) (“the Act”).
Grounds 2 and 3 relate to the same issue.
Grounds 4 and 5 appear to be more in the nature of submissions opposing the First Respondent’s application that the applicants’ application is an abuse of process.
The First Respondent makes three submissions in respect of the first ground.
a)The first is that s.66(4) of the Act states that failure to give notification of a decision does not affect the validity of the decision.
b)The second is that the applicants themselves state that they were notified of the decision on the 28 March 1998, that being the date upon which the decision was made.
c)The third is that any defect arising from a breach of procedural fairness or natural justice was “cured” by the decision of the Tribunal who considered the applicants application for a protection visa de novo. (Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116; Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 at 298).
I accept each of these submissions and each is sufficient to dispose of this ground, and, indeed, the proceeding.
In the circumstances, there is no jurisdictional error disclosed in the application and the proceeding should be dismissed.
Applicants delay in seeking judicial review of Delegate’s decision
Even if there was an error in the Delegate’s decision, there was no evidence filed by the Applicant prior to the hearing of this matter to explain any delay in seeking relief in respect of the decision of the Delegate.
The application before this Court is plainly out of time and the relief sought by the applicants is discretionary relief under s.39B of the Judiciary Act 1903 (Cth).
In considering whether or not discretionary relief should be granted, it is appropriate to consider whether the applicants’ conduct is inconsistent with the application for relief. In those considerations, delay on the part of an applicant seeking such relief is relevant (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162).
Leave was granted to the Applicant at the hearing to give oral evidence to explain his delay. The Applicant stated that he did not know the migration laws so he went to a migration agent who suggested that he seek review of the Tribunal decision. As a result, he applied to many different Courts and that that was the reason for his delay. The Applicant also said that he had no work permit, was under financial hardship and that no one had agreed to help him write submissions.
Nowhere in that explanation is there any reference to why it was that the Applicant waited more than 8 years to seek review of the Delegate’s decision. Moreover, there was an adequate remedy available to the applicants and which was pursued by them, namely a review of the Delegate’s decision by the Tribunal. Accordingly, any discretionary relief sought by the applicants should be refused.
c) The First Respondent’s application for summary dismissal
An application was filed by the First Respondent on 11 May 2006 seeking summary dismissal of the applicants’ application for judicial review of the Delegate’s decision as an abuse of process. The First Respondent read the affidavit of Kathleen Mary Crawley sworn
10 May 2006 and filed on 11 May 2006. Exhibited to that affidavit was a bundle of documents marked KMC-1. That bundle of documents is Exhibit 1R.
Exhibit 1R chronicles a procedural history in respect of the applicants’ application for a protection visa disclosing 10 other sets of proceedings in federal courts, being the High Court of Australia, the Federal Court of Australia and the Federal Magistrates Court of Australia. The 11th proceeding is the application before this Court, the subject of this hearing.
The first 10 sets of proceedings all arise out of attempts by the applicants to have the decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 January 2002 remitted to the Tribunal on the basis of jurisdictional error.
Judicial review of the Tribunal’s decision was first sought in the Federal Court of Australia by application filed in that Court on 4 March 2002. On 24 June 2002, Gyles J concluded there was no “tenable basis for attack upon the decision of the Tribunal” and dismissed the application. An appeal from the decision of Gyles J was dismissed by the Full Court of the Federal Court on 11 October 2002, in which the Court concluded “we can see no error in the approach and reasons of the primary judge.”
On 10 November 2002, the applicants issued a writ of summons in the High Court of Australia seeking a declaration that the decision of the Tribunal was made in breach of the rules of natural justice and was consequently null and void and of no affect. On 8 April 2003, a notice of discontinuance was filed by the applicants.
On 1 May 2003, the applicants filed an application in this Court seeking judicial review of the Tribunal decision in which they stated that they were notified on 7 February 2002.
On 14 November 2003, Driver FM granted leave to the applicants to discontinue the application filed on 21 July 2003 and a notice of discontinuance was filed pursuant to that order by the applicants on
31 August 2003.
Thereafter, on 17 September 2003, the applicants filed in the High Court of Australia a draft order nisi seeking constitutional writ relief in respect of the decision of the Tribunal. That proceeding was remitted by the High Court of Australia to the Federal Court of Australia. On
9 February 2004, orders nisi were refused and an order made that no further application by the applicants for review of the decision of the Tribunal dated 14 January 2002 be accepted for filing without leave of the Court. The reasons of the Federal Court decision noted that the affidavit filed in support of the application for an order nisi in the High Court disclosed no basis upon which any relief should be granted.
On 26 March 2004, the applicants sought special leave from the Court of Appeal to appeal from the decision of the Full Court of the Federal Court dated 11 October 2002 in which the appeal of the decision of Gyles J was dismissed. On 22 November 2004, the proceeding in the High Court seeking special leave was deemed abandoned by the applicants.
On 3 December 2004, the applicants filed an application once again in this Court in the Brisbane registry seeking review of the Tribunal’s decision. On 1 February 2005, Baumann FM dismissed the application as an abuse of process and noted that no leave had been sought by the applicants to file such an application.
On 15 February 2005, the applicants filed a notice of appeal from the decision of Baumann FM in the Federal Court of Australia. That application was filed out of time. On 5 April 2005, Spender J refused an extension of time to the applicants in which to file and serve the application for leave to appeal. Spender J found that the conduct of the applicants constituted a “significant and obvious abuse of the process of the Court.” Spender J also noted that the First Respondent had “suffered prejudice by having to expend resources and legal costs to defend the numerous proceeding” which had occurred to that date. Spender J also noted that the applicants proposed appeal had no prospect of success.
On 2 May 2005, the applicants filed an application for special leave to the High Court of Australia to appeal from the decision of Spender J. On 2 June 2005 the applicants’ application for special leave was deemed abandoned by the High Court of Australia.
On 28 June 2005, the applicants again sought an application for special leave to appeal from the decision of Spender J to the High Court of Australia. On 14 November 2005, Gummow J and Kirby J refused leave to the applicants for special leave concluding “the history of the matter amply demonstrates that Spender J was correct in describing the applicant’s proceedings in the Federal Magistrates Court as “a significant and obvious abuse of process of that Court” accordingly special leave to appeal is refused.”
Whilst this procedural history in respect of judicial review of the Tribunal’s decision is plainly relevant to the First Respondent’s application for summary dismissal for abuse of process, I have regard to the fact that the present application before this Court is in respect of the Delegate’s decision.
However, the applicants have had a hearing de novo on the merits before the Tribunal. That decision has been found on numerous occasions to contain no error. In light of the applicants’ conduct in the procedural history of this matter, the absence of any satisfactory evidence to explain the delay in seeking review of the Delegate’s decision for more than 8 years and the hopelessness of the present proceeding, I readily find that the application filed by the applicants in this Court on 24 November 2005 before this Court is an abuse of process.
First Respondent’s application that the applicants not be allowed to file in the Court without leave
Further, for the same reasons that the Applicant’s application is an abuse of process, I am persuaded that the order sought by the First Respondent that the applicants not be able to file any further application in seeking review of the Delegate’s decision should be made. There is already an order in place that the applicants not be able to file any further applications seeking review of the Tribunal decision (Applicant S506 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 450).
Indemnity costs
The First Respondent seeks indemnity costs fixed in an amount of $4,500 in respect of her application. The First Respondent has been put to the expense of unnecessary litigation and is in those circumstances entitled to be recompensed in full (Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260). The application discloses no reviewable error by the Delegate and is a clear abuse of process. Accordingly, for the same reasons that the applicants’ application before this Court is an abuse of process, I am satisfied that it is appropriate that the Applicant pay the First Respondent’s costs on an indemnity basis in the amount of $4500. I also note that the amount sought by way of indemnity costs by the First Respondent is in fact less than the amount available under Schedule 1 of the Federal Magistrates Court Rules as to costs.
Accordingly, the applicants’ proceeding before this Court is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S.Kwong
Date: 6 July 2006
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