SZASP v MIAC

Case [2007] FCA 771

FEDERAL COURT OF AUSTRALIA

SZASP v Minister for Immigration and Citizenship [2007] FCA 771

MIGRATION – abuse of process – burden on the courts of dealing with vexatious litigants bringing meritless claims while being repeatedly granted bridging visas

Migration Act 1958 (Cth) ss 48B, 416

SZASP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 129 OF 2007

SZBXA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 277 OF 2007

SZAFD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 347 OF 2007

APPLICANT NACS OF 2001 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 402 OF 2007

APPLICANT S1000 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 503 OF 2007

MOORE J
24 MAY 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 129 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZASP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MOORE J

DATE OF ORDER:

24 MAY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent's costs fixed in the sum of $750.

3.The name of the first respondent be amended to read "Minister for Immigration and Citizenship".

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 277 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBXA
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MOORE J

DATE OF ORDER:

24 MAY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent's costs.

3.The name of the first respondent be amended to read "Minister for Immigration and Citizenship".

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 347 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZAFD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MOORE J

DATE OF ORDER:

24 MAY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent's costs fixed in the sum of $1000.

3.The Refugee Review Tribunal be added as second respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.



IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 402 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT NACS OF 2001
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MOORE J

DATE OF ORDER:

24 MAY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant…

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AGLC
SZASP v MIAC [2007] FCA 771
Case
[2007] FCA 771
Decision Date

CaseChat Overview and Summary

The case of SZASP v MIAC involved multiple applicants, all of whom were seeking judicial review of decisions relating to their migration status in Australia. The applicants, who had been granted bridging visas, were attempting to appeal various decisions made by the delegate of the Minister for Immigration and Citizenship. The matter was heard in the Federal Court of Australia, where Justice Bromberg was presiding. The central legal issue before the court was whether the applicants' appeals were frivolous and an abuse of process, given the numerous rejections of similar cases and the futility of the proceedings.

Justice Bromberg found that the applicants' appeals were without merit and constituted an abuse of the court's process. The judge noted that nearly 40 similar migration applications or appeals had been brought before the court in the past six months, each of which was deemed an abuse of process. The court was concerned about the significant and unnecessary burden these cases placed on judicial resources and the courts more generally. The judge also highlighted that the applicants had been granted bridging visas repeatedly, allowing them to remain in Australia and continue to pursue proceedings. Despite orders requiring prior leave of the court before further applications could be accepted for filing, the court found that such measures were ineffective in discouraging the institution of proceedings of this nature.

The court dismissed the applications and ordered the applicants to pay the costs of the Minister for Immigration and Citizenship. The judge expressed hope that a review of current arrangements regarding the granting of bridging visas would result in a means of reducing the number of such cases. Additionally, the court noted that the dismissal of these applications would likely lead to applications for special leave in the High Court.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $750.

3. The name of the first respondent be amended to read "Minister for Immigration and Citizenship".

1. The application be dismissed.

2. The applicant pay the first respondent's costs.

3. The name of the first respondent be amended to read "Minister for Immigration and Citizenship".

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $1000.

3. The Refugee Review Tribunal be added as second respondent.

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $1800.

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $1200.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MOORE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

I have been informed on previous occasions, and again by Mr Markus at the hearing of these matters, that a review of current arrangements regarding the granting of bridging visas is underway and that the issues I have raised now on a number of occasions are under active consideration. It is to be hoped that this results in an appropriate means of reducing the number of these cases, as these cases place a significant and unnecessary burden on judicial resources and the courts more generally. Disposition of the applications and consideration The applications in each of the matters must be dismissed. Were leave granted, none of the appeals would have any prospect of success. Each is also an abuse of the process of this Court. In the past six months, I have now had before me nearly 40 migration applications or appeals which are of the same character as these five and which can each be described as an abuse of process. By the time these applications reach this Court, it is not uncommon for ten or more judicial officers to have considered and rejected proceedings instituted by the applicants in relation to the delegate's decision. The applicants can have little doubt about the futility of the proceedings. In the past many cases of the type dealt with in this Court have been the subject of special leave applications to the High Court, which, as far as I am aware, are invariably unsuccessful. Often a further round of litigant is commenced at a trial level in the Federal Magistrates Court, within three weeks of the application being dismissed by the High Court. This creates the framework for the litigant to pass through the primary hearing and appeal process again. Experience would suggest that the dismissal of these applications will also lead to application for special leave in the High Court. It is a matter of concern that each of the present applicants, and those who institute like proceedings, have been granted bridging visas repeatedly and, as a consequence, permitted to remain in Australia and prosecute proceedings. One means of attempting to discourage or prevent the institution of proceedings of this general character is to make orders requiring prior leave of the court before further applications (either in relation to reviews of specific decisions or generally) may be accepted for filing. Such orders are commonly sought by the Minister's solicitors and are often granted, both in this Court and the Federal Magistrates Court. As I have indicated to legal representatives appearing for the Minister on previous occasions, it is questionable whether this mechanism is effective in discouraging or preventing such proceedings. Orders of this kind have been made in a number of the present matters. In Applicant S1000 of 2003, such orders were made on two occasions by the Federal Magistrates Court and on one occasion by this Court. The burden of giving effect to such orders is placed on the registry of the relevant court, and in practice, the requirement for leave may merely create another opportunity for litigation. Additionally, the use of pseudonyms because of s 91X of the Act renders the registry's task more difficult. It is doubtful whether the course of declaring an applicant a vexatious litigant, as occurred in Applicant S1000 of 2003 in the Federal Magistrates Court, is effective in practice as a means of addressing the problem.