SZAQS v Minister for Immigration
[2005] FMCA 1804
•25 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQS v MINISTER FOR IMMIGRATION | [2005] FMCA 1804 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by the High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome that RRT decision is privative clause decision – application for judicial review dismissed as incompetent. |
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
SZAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 427
SZAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1413
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1284
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
| Applicant: | SZAQS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2307 of 2005 |
| Delivered on: | 25 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 25 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Mr B Cramer |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The respondent’s Notice of Motion filed on 11 October 2005 is upheld.
The respondent’s Notice of Objection to Competency filed on
11 October 2005 is upheld.
The application for judicial review filed on 22 August 2005 is dismissed.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Mr Luke Hardy File No: N01/40818) made on 8 April 2003 and handed down on
29 April 2003 or the decision of the Delegate of the Minister for Immigration (of Mr Keith Dixon File No: CLF2001/43112) handed down on 30 October 2001 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,100 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2307 of 2005
| SZAQS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Motion filed on 11 October 2005, the respondent seeks an order dismissing the application filed on 22 August 2005 on the ground that pursuant to Part 13, Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) the proceedings are frivolous or vexatious or the proceedings are otherwise an abuse of process.
By a Notice of Objection to Competency filed on 11 November 2005 the respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that it was not filed within 28 days of the notification of the decision sought to be reviewed as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”). The respondent submits that the application should be dismissed as this Court does not have jurisdiction to hear it.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on
22 August 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 April 2003 and handed down on 29 April 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 October 2001 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
For the purpose of this Notice of Motion and Notice of Objection to Competency, the respondent tendered and applied for the affidavit of Melissa Inga Gwendolyn Asimus affirmed on 31 October 2005 to be admitted and read into evidence (“the affidavit of Ms Asimus”).
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZAQS”.
Background
The applicant, who claims to be a national of Bangladesh, arrived in Australia on 7 August 2001. On 22 August 2001 he lodged an application for a protection (Class XA) visa with what is now the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 30 October 2001 the delegate refused to grant a protection visa and on 28 November 2001 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant comes from Comilla and claims to have undertaken a total of 12 years schooling. He completed high school in 1988 when he was 18. The applicant also claims he went on to study for two years in an Islamic madrassa, leaving at 20. He claimed he lived in Bangladesh for several years before travelling to Oman and Singapore for work. Here his evidence is inconsistent. He claims to have left Bangladesh in the mid-1990’s for countries in the Middle East and Singapore. However, in his primary application form, he claims he remained in Bangladesh until 1998, travelling first to Singapore and later, in 2001, to Oman.
The applicant claimed he joined the Islami Chatra Shibir whilst undertaking Islamic studies at the madrassa. The applicant claimed he was appointed a local branch leader or rokon of the Islami Chatra Shibir. He claimed that its chief opponent was the Awami League (“AL”), one of Bangladesh’s two main parties, both of them secular, the other is the Bangladesh Nationalist Party (“BNP”). The applicant claimed that his work in the 1990’s with the Islami Chatra Shibir made him a prime target for persecution at the hand of the AL and its gangs. He claimed he had to move around Bangladesh for eight years after leaving the madrassa in order to avoid being harmed by the AL. The applicant claimed fear of persecution in Bangladesh in for Convention related reasons of political opinion (the affidavit of Ms Asimus, pp.7-8).
Litigation history
Ms Asimus, Solicitor for the respondent, prepared a convenient summary of the litigation history of the application and I have adopted paragraphs 2-8 of her affidavit for the purpose of this judgment:
[2]On 22 May 2003, the applicant applied to the Federal Magistrates Court for review of a decision made by the Refugee Review Tribunal on 8 April 2003 and handed down on 29 April 2003.
[3]On 10 June 2004 the applicant appeared at the hearing before Federal Magistrate Barnes. Federal Magistrate Barnes dismissed the application with costs.
[4]On 28 June 2004, the applicant filed a notice of appeal in the Federal Court (Federal Court file no. N1001/2004) appealing the decision of Federal Magistrate Barnes.
[5]On 13 October 2004 the appellant appeared before the Honourable Justice Emmett. At the hearing Emmett J dismissed the appeal with costs.
[6]On 5 November 2004 the applicant filed an application for special leave to appeal to the High Court (High Court file no. S439/2004).
[7]On 5 August 2005 McHugh and Heydon JJ of the High Court dismissed the special leave application.
[8]On 22 August 2005 the applicant filed a second application (the present proceedings) in the Federal Magistrates Court (Federal Magistrates Court file no. SYG2307/2005) seeking review of the decision made by the Refugee Review Tribunal on 29 April 2003, the subject of all previous proceedings.
Respondent’s application
Mr B Cramer, Solicitor appearing for the respondent, provided written submissions in support of his application and I have adopted paragraphs 17-29 for the purpose of this judgment:
[17]The effect of the previous judicial review proceedings in the Federal Magistrates Court, the Full Federal Court and the High Court, is that the Decision has been found not to be affected by jurisdictional error. It is therefore a privative clause decision as that term is defined in s.474 of the Act.
[18]As the present application has been lodged approximately 2 years and 3 months outside the time limit of 28 days as permitted by s.477(1A) of the Act, it is incompetent and the Court has no jurisdiction to extend that time limit: SZBML v MIMIA [2004] FCA 1195.
[19]As there is an existing judicial determination that there is no jurisdictional error the Court can dismiss the matter now without hearing final argument on whether there is a jurisdictional error.
[20]Alternatively, the respondent submits that the application should be dismissed summarily pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (the Rules). Rule 13.10 enables the Court to dismiss a proceeding summarily if no reasonable cause of action is disclosed, if it is frivolous or vexatious or otherwise an abuse of process (see Kosi v MIMIA [2003] FMCA 340, NALE v MIMIA [2003] FMCA 366).
[21]In Walton v Gardiner, Mason CJ and Deane and Dawson JJ said that:
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. … Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings”: citing Reichel v Magrath (1889), 14 App Cas 665, 668; Connelly v Director of Public Prosecutions [1964] AC 1254, 1361-1362.
[22]In Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 at [18]-[19], Wilcox J found that re-litigating the same application can be an abuse of process. His Honour observed that:
“If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner ….”
[23]Similarly, in SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404, at [29]-[30], Madgwick J said:
“Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way, with legal advice, to a Full Court of this Court, and thereafter, it seems, without such advice to the High Court, it is high time that all this litigation was put to an end. ….. The proceedings, being groundless on their face, are an abuse of process.” (see also S442 of 2002 v MIMIA [2003] FCA 1240 at [29]; Applicant A87 of 2003 v MIMIA [2004] FCA 919 at [40]; Bal v MIMA [2001] FCA 1191 at [24]-[27] where the relationship between Anshun estoppel and abuse of process is briefly discussed.
[24]A proceeding is also an abuse of process if regardless of its merits or prospects of success, it is brought as a means of obtaining some advantage for which the proceeding is not designed or some collateral advantage beyond what the law offers: Second Life Décor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78.
[25]The respondent submits that it can be inferred from the history referred to above that the application has been made for the purpose of delay to extend the applicant's period of lawful stay in Australia. Such an inference was drawn by the Court in NALE v MIMIA [2003] FMCA 366.
[26]The present application is an abuse of process because the proceedings are groundless and the applicant has already previously litigated his way, in the Federal Magistrates Court, and then in the Full Federal Court and the High Court of Australia.
[27]No jurisdictional error has been established. In any event, re-litigating a case that has already been disposed of by earlier proceedings and higher Courts is a blatant abuse of process.
[28]Therefore the respondent contends the application should be dismissed as an abuse of process pursuant to Rule 13.10 of the Federal Magistrates Court Rules for the reasons given above
[29]The respondent submits that the application be dismissed because:
(i)there is no jurisdictional error in the Tribunal’s decision and the present application was lodged outside the time limit permitted by s.477(1A) of the Act and is therefore incompetent: SZBML v MIMIA [2004] FCA 1195; or
(ii)the application is an abuse of process.
Applicant’s submissions
The applicant appeared before me at a first court date directions hearing on 27 September 2005 and the solicitors representing the respondent indicated they intended to pursue an interlocutory application seeking to have these proceedings dismissed on the grounds set out above. The applicant was made aware of the nature of the proceeding that was going to be brought in this Court and a timetable in respect of that hearing was established. The applicant did not file any documentation in response to the respondent’s interlocutory application and arrived at Court with no documentation or papers relating to this matter. When invited to make oral submissions in response to the respondent’s application, these were limited to inviting the Court to listen to a copy of the Tribunal’s hearing tapes. When the applicant was asked whether he could provide a transcript or demonstrate what aspects of the recording he required the Court to consider, he indicated that there was no transcript and the invitation was to listen to the complete recording so that the Court could form its own view in respect of his protection visa application. When the applicant was asked whether he had submitted the hearing tapes at any of the previous hearings, he failed to respond.
Reasons
The application for judicial review filed on 22 August 2005 pleaded the grounds, being paragraphs 4-11, which effectively raised four different issues and it is convenient to marshal them into those four groups to compare the previous decision or to determine whether all the issues raised in the new pleadings have been previously addressed. The four separate grounds are:
a)the Tribunal asked itself the wrong question (application paragraph 4);
b)the applicant was denied natural justice and procedural fairness (application paragraphs 5, 6 and 9);
c)the Tribunal failed to investigate the claim (application paragraphs 6, 8 and 9); and
d)bias/apprehension of bias (application paragraphs 5 and 9).
The original application for judicial review filed with the Federal Magistrates Court on 22 May 2003 contained nine grounds which raised the same four issues set out in the paragraph above. That comparison is as follows (the affidavit of Ms Asimus, p.2):
a)New Ground 1 – refer original grounds 1, 5 and 7
b)New Ground 2 – refer original grounds 3 and 4
c)New Ground 3 - refer original ground 8
d)New Ground 4 – refer original grounds 2 and 6
Ground 9 relates “I will provide more grounds later”.
The decision of her Honour Federal Magistrate Barnes in her judgment delivered on 10 June 2004 (SZAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 427) addresses the four grounds identified above in the following manner (the affidavit of Ms Asimus, pp.19-27):
a)Ground 1 – refer to paragraphs [8], [12], [15] and [16]
b)Ground 2 – refer to paragraphs [10], [11] and [13]
c)Ground 3 – refer to paragraphs [12] and [16]
d)Ground 4 – refer to paragraphs [13] and [14]
The applicant appealed the decision of her Honour Federal Magistrate Barnes to the Federal Court and the matter was heard by his Honour Emmett J: SZAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1413. His Honour made the following finding at [18] (the affidavit of Ms Asimus, p.40):
“I do not consider that there is any substance at all in the appeal. No error at all on the part of the Federal Magistrate has been demonstrated. In my opinion the appeal should be dismissed with costs.”
The applicant then made a special leave application to the High Court which was considered by their Honours McHugh and Heydon JJ where they made the following finding (the affidavit of Ms Asimus, p.46):
“The applicant raises no ground on which to disturb the decision of the Federal Court. An appeal would have no prospect of success. The application must be dismissed.”
I am satisfied that the applicant has not raised any new issue which has not yet been considered by a previous Court and I accept the respondent’s submissions that no reasonable cause of action is disclosed.
The applicant’s absence of submissions to the Court at this hearing indicated he had no understanding of or belief in his own judicial review application. His comments were limited to issues of a merits review of the applicant’s evidence and difficulties he was experiencing in preparing his case. This was acknowledged and it was explained to the applicant that the Court appreciated the difficulty he was under because he did not understand the language or the legal concepts discussed. However, the applicant had prepared documents on a number of occasions to the three different Courts in a form accepted by each which would indicate he was receiving some form of assistance in the preparation of the documentation to initiate ground of proceedings. The applicant claimed that this contact had moved away and was no longer available to assist him.
This raised the question of why the applicant had re-invigorated these proceedings but had previously failed to prosecute the matter and the matter was listed for hearing. The motivation for the re-invigoration of these proceedings may have been to extend the applicant’s stay in the country. My attention has been drawn to the decision of Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where this issue was canvassed and reference was made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where Driver FM states:
“It would be an abuse of the Court’s process to file an application for review simply for the purpose of extending the period of one’s stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances, there is potential for the Court’s process to be abused by an applicant whose only purpose is to take advantage of that delay.”
See also SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs per Jacobson at [15] and [22]-[29].
I am satisfied that the Tribunal’s decision of 8 April 2003 (Reference No: N01/40818) does not contain any jurisdictional error and consequently is a privative clause decision. This has been confirmed by the previous decisions of the Federal Magistrates Court, Federal Court and the High Court. Consequently, pursuant to s.477(1A) of the Act, an application for judicial review must be filed within 28 days of the notification of the relevant Tribunal’s decision. The present application was filed on 22 August 2005 seeking review of the Tribunal’s decision made on 8 April 2003, which is a period of approximately 28 months. In the interim period, an application for a review of the decision of the Tribunal listed before the Federal Magistrates Court, the Federal Court and a special leave application to the High Court has found no error in the Tribunal’s decision. The applicant has not shown any reason why this Court should not be bound by those decisions such that the time limit under s.477(1A) should not apply.
I am guided by the decisions of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) which dismissed applications for review filed in similar circumstances as incompetent. Both of these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J. Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM, the Minister’s application was based on assertions of res judicata, estoppel, abuse of process and jurisdiction. However, in cases where the issue of whether a decision of the Tribunal is a privative clause decision for the purpose of any proceedings in this Court and that issue has been conclusively determined by previous hearings and affirmed on appeal to the Federal Court, this Court is bound by a decision of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach adopted by Driver FM was upheld on appeal in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004) per Whitlam J.
The Tribunal reached the conclusion that it did, as set out in its decision, and there is no basis on which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the respondent’s Objection to Competency should be upheld.
Conclusion
The application filed on 22 August 2005 relates to a privative clause decision that has not been filed within 28 days of the applicant being notified of the said decision as required by s.477(1A) of the Act. The respondent’s Notice of Objection to Competency is upheld and the applicant’s substantive proceedings should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 5 December 2005
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