SZAQW v Minister for Immigration
[2006] FMCA 711
•8 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 711 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal that it had no jurisdiction. PRACTICE & PROCEDURE – Abuse of process – application for review of Tribunal decision that it had no jurisdiction because the application was out of time – where Tribunal had previously reviewed the delegate’s decision. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.412 |
| SZAQW v Minister for Immigration [2004] FMCA 102 SZAQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 635 SZAQW v Minister for Immigration & Anor [2005] FMCA 1576 |
| Applicant: | SZAQW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 980 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 May 2006 |
| Date of Last Submission: | 8 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2006 |
REPRESENTATION
| Applicant: | No Appearance |
| Solicitor for the Respondent: | Mr Sinnadurai |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed pursuant to Rule.13.10 as no reasonable cause of action is disclosed in relation to the proceedings.
The Application is an abuse of process.
No further application for review of the decisions of the Refugee Review Tribunal dated 23 March 2006, reference N05/52912, and 29 April 2003, reference N01/39008, or for review of the decision of the delegate of the First Respondent dated 15 May 2001, or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
The Applicant is to pay the First Respondent's costs on an indemnity basis fixed in the sum of $1,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 980 of 2006
| SZAQW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The substantive application to the Court is an application for an order to show cause. The Applicant claims to be aggrieved by a decision of the Refugee Review Tribunal made on 23rd March 2006.
The Applicant seeks an order that the Tribunal should re-hear the matter according to law, and an order that the Applicant is not removed from Australia until a decision is made and a declaration that the Tribunal has jurisdiction to review his original application.
The Applicant claimed that the Tribunal misinterpreted the law in question, and the second ground clearly contains a typing error and I think it means that the Tribunal erred in finding that it had discharged its obligation in the past, and that the third ground is that the Tribunal erred in holding that it did not have jurisdiction and did not have obligation to conduct a review.
The Applicant has not attended Court today. The application was listed at 10:00am and the matter was not reached until 11:48am due to an exceptionally heavy list and the Applicant has not attended.
No message or fax or letter has been received from the Applicant, or anyone on the Applicant's behalf, indicating that the Applicant has been hindered or delayed or prevented from attending Court for any reason of illness, injury, or other personal emergency. The Applicant has just not attended.
I am asked, and I propose to accede to this request, by the solicitor for the Respondent Minister to deal with the matter under the provisions of Rule.13.03A but not just to dismiss the application for non-attendance.
The Respondent seeks that the Court should proceed to hear the matter to finality. The Respondent contends that the application is, amongst other things, an abuse of process. That is clearly correct and the application is without any merit at all.
The Tribunal decision made on 23rd March 2006 is one of a type that the Court has seen on a number of occasions in recent months. It is a finding that the Tribunal does not have jurisdiction to hear the Applicant's application to review a decision by a delegate of the Respondent Minister not to grant a protection visa. There are two reasons why the Tribunal found it did not have jurisdiction to review the application. The first reason is that the application for review was received outside the time prescribed under s.412 of the Migration Act.
The decision of the delegate which the Applicant seeks to have reviewed was made on 15th May 2001. This application is out of time by several years. The second reason why the Tribunal found that it did not have jurisdiction was because it had already reviewed the delegate's decision. The Tribunal affirmed the delegate's decision on 7th April 2003. The Tribunal noted that the Applicant unsuccessfully sought judicial review of the Tribunal's decision and also unsuccessfully sought the intervention of the Minister under the provisions of s.417 of the Migration Act. The Applicant lodged a further application for review of the delegate's decision on 19th December 2005.
The solicitor for the Respondent has filed a Response seeking an order that the application filed by the Applicant should be dismissed under Rule.13.10 (a) and/or 13.10(b) and/or 13.10(c) on the grounds that no reasonable cause of action is disclosed in relation to the proceedings or claim for relief, and/or the proceedings are vexatious and/or an abuse of process. The Respondent also seeks an order that no further application for review of the decisions of the Tribunal should be accepted for filing without prior leave of the Court.
The Respondent relies on an affidavit sworn by Svetlana Zarucki, solicitor, on 3rd May 2006. In that affidavit Ms Zarucki provides details of the Applicant's litigation history. In the Respondent's Outline of Submissions, filed on 4th May 2006, a convenient chronology of the litigation history is set out. It clearly shows that the Applicant will not take no for an answer. The chronology and the affidavit of
Ms Zarucki show that the Applicant applied for a protection visa on 26th March 2001. The delegate refused the grant of a visa on 15th May that year.
On 7th June 2001, the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. On 29th April 2003 the Tribunal handed down its decision affirming the decision of the delegate. The Applicant then sought judicial review of that decision on 23rd May 2003 by filing an application for review at this Court. On 13th February 2004 her Honour, Barnes FM, dismissed the application. The media neutral citation to that decision is [2004] FMCA 102.
On 1st March that year the Applicant then filed a Notice of Appeal. On 30th April 2004 in the Federal Court exercising the delegated jurisdiction of the Full Court of the Federal Court, Conti J dismissed the Applicant's appeal. The citation to that decision is SZAQW & Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 635.
The Applicant then filed an application for Special Leave to Appeal to the High Court of Australia on 26th May 2004. On 11th January 2005 those proceedings were deemed abandoned by the High Court, so on 21st February 2005 the Applicant filed a further application for special leave. That application was dismissed by the High Court on 16th June 2005 when Gleeson CJ and Gummow J gave a decision dismissing the application.
Undaunted by this string of rejections, the Applicant then filed a fresh application for review of the Refugee Review Tribunal's decision in the Federal Magistrates Court on 8th July 2005. On 18th October 2005 in the Federal Magistrates Court, Smith FM dismissed the application. His Honour noted that the application was an abuse of process and made an order for costs on an indemnity basis. His Honour directed that no further application for review of the decision of the Tribunal handed down on 29th April 2003, or for review of the decision of the delegate dated 15th May 2001, or for review of any notification of those decisions should be accepted for filing without prior leave of the Court. The citation to that decision is [2005] FMCA 1576.
The Applicant then sought leave to appeal to the Federal Court of Australia on 25th October 2005. On 9th December that year, Graham J dismissed the application for leave to appeal. It was then that on 19th December 2005 that the Applicant brought the further application for review of the delegate's decision with the Refugee Review Tribunal. The Tribunal wrote to the Applicant on 20th January 2006 advising him that it appeared that the application was ineligible because it was lodged outside the requisite 28 day time period. The Tribunal invited comment from the Applicant on this issue by 15th February 2006. The Applicant replied on 18th March 2006. The Tribunal determined that it did not have jurisdiction on 23rd March 2006.
The Applicant then applied for judicial review of the second RRT decision in this Court. I am satisfied that no jurisdictional error appears in the Tribunal decision which the Applicant seeks to have reviewed. It is quite clear from the litigation history that the Tribunal found correctly that it had no jurisdiction. The application was out of time under s.412 and there was nothing for the Tribunal to review because it had already reviewed the delegate's decision. The Applicant in fact had been to the Federal Magistrates Court and the Federal Court and the High Court challenging the decision of the Refugee Review Tribunal.
The Tribunal had no option but to find that it had no jurisdiction and no error appears. It is clear that there is no reasonable basis for the application and that of itself would justify dismissing the application to this Court. The Applicant's case was clearly untenable, and so untenable that it could not possibly succeed. Again, it is clear that these proceedings have been brought for an ulterior purpose. The application for a review of a spurious application to the Refugee Review Tribunal was clearly brought for the ulterior purpose of extending a bridging visa for the purpose of prolonging the Applicant's stay in Australia.
The Court, as I said, has seen a number of these applications involving a token spurious re-application to the Refugee Review Tribunal purely for the purpose of obtaining a decision in order to ground an application for review to be brought into this Court. The application for review is clearly groundless because it would be obvious that the Tribunal has no basis to do anything else but find that it has no jurisdiction. The entire proceeding is a scam designed to prolong the Applicant's stay in Australia by means of obtaining a hearing date against which a bridging visa can then be extended. The application is quite clearly an abuse of process and it should be dismissed.
I dismiss the application as an abuse of process and I propose to make an order for costs. It is submitted that I should make an order for costs on an indemnity basis. The ground for doing so is that these proceedings are an abuse of process. In my view, that is a correct assessment of the situation. I note that the sum that is sought is $1,200.00 on an indemnity basis and that seems to me to be a modest sum which I have no hesitation to accept.
I also intend to follow the example of my colleague, Smith FM, who made an order in the proceedings before him on 18th October 2004 that no further application for review should be accepted from the Applicant in respect of the decisions of which his Honour was dealing, except by leave of the Court. That order was clearly designed to prevent a further abuse of process in the future. I propose to order that no further application for review of the decisions of the Tribunal including this latest decision should be accepted for filing without leave of the Court.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 18 May 2006