SZAUV v Minister for Immigration
[2007] FMCA 770
•10 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAUV & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 770 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – no arguable case raised – no reasonable prospect of successfully prosecuting the claim – frivolous or vexatious – abuse of process – no filing without leave – any proceeding in this Court not to be continued without leave – not to institute proceeding without leave – application dismissed. |
| Migration Act 1958 (Cth), ss.414 Federal Magistrates Court Rules 2001, rr.13.10, 13.11, 44.12 |
Jayasinghe v MIEA (1997) 76 FCR 301
SZIIV v MIMA [2006] FMCA 322
SZAUV v MIMIA [2004] FMCA 647
SZAUV & Ors v MIMIA [2004] FCA 1745
SZAUV & Ors v MIMIA [2005] HCATrans 710
SZAUV & Ors v MIMIA [2005] FMCA 1840
SZAUV v MIMIA [2006] FCA 578
SZAUV & Ors v MIMIA & Anor [2006] HCATrans 641
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 19 ALR 621
Freeman (a bankrupt) v National Australia Bank & Anor (2006) 230 ALR 213
S1000 of 2003 v Minister for Immigration [2004] FMCA 963
SZDDG v Minister for Immigration [2004] FMCA 420
Walton v Gardiner (1993) 177 CLR 378
Hunter v The Chief Constable of the West Midlands Police [1982] AC 529
| First Applicant: | SZAUV |
| Second Applicant: | SZAUW |
| Third Applicant: | SZAUX |
| Fourth Applicant: | SZAUY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 829 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 10 May 2007 |
| Date of last submission: | 10 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2007 |
REPRESENTATION
| The Applicants appeared in person |
| Solicitor for the Respondents: | Ms N. Johnson of Sparke Helmore |
ORDERS
The application is dismissed pursuant to Rule 13.10, as
(a)The applicant prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the claim, and
(b)The proceeding or claim for relief is frivolous or vexatious, and
(c)The proceeding or claim is an abuse of process.
Without prior leave of the Court, the Registry of the Court is not to accept for filing any further application for review of:
(a)The decision of the delegate of the Minister dated 13 June 2002, or
(b)The decision of the second respondent Refugee Review Tribunal signed on 13 February 2007 (RRT case no 060966489), or
(c)The decision of the second respondent Refugee Review Tribunal handed down on 2 June 2003 (File no. N02/43279), or
(d)Any other decision relating to the applicant’s application for a protection visa lodged on 16 April 2002.
The Court orders on its own motion:
(a)That any proceedings instituted by the applicant in this Court in relation to, or to review, the decision of the delegate of the Minister dated 13 June 2002, not be continued without the leave of the Court.
(b)That the applicant may not institute a proceeding relating to the decision of the delegate of the Minister dated 13 June 2002 without leave of the Court.
The applicants are to pay the costs of the first respondent fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 829 of 2007
| SZAUV |
First Applicant
| SZAUW |
Second Applicant
| SZAUX |
Third Applicant
| SZAUY |
Fourth Applicant
And
| MINSTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The first respondent argues that the application before the Court should be dismissed because it:
·does not raise an arguable case;
·has no reasonable prospect of success;
·is an abuse of process; and
·is frivolous or vexatious.
The Court accepts, with one correction, Annexure A to the Affidavit of Nicola Johnson filed on 3 April 2007 in this matter, as uncontested evidence of the proceedings conducted by the applicant leading to, and in relation to, the decision of the delegate of the Minister dated 13 June 2002. The one correction is the date on which the first RRT decision was handed down. According to the second decision of the Tribunal, the first Tribunal “affirmed the delegate’s decision on 28 May 2003 and handed its decision down on 2 June 2003”.
Annexure A is reproduced as follows:
BACKGROUND
First applicant born in Bangladesh 6 February 1952
Applicants arrived in Australia 15 March 2002
DIMIA
Application for protection visa lodged 16 April 2002
Delegate’s decision 13 June 2002
RRT
Application for review lodged 2 July 2002
RRT hearing 28 May 2003
RRT decision handed down 2 June 2003
FEDERAL MAGISTRATES COURT – SZ1134/2003
Application for judicial review lodged 23 June 2003
Application dismissed with costs 10 September 2004
by Baumann FMFEDERAL COURT – NSD1421/2004
Notice of appeal lodged 30 September 2004
Appeal dismissed with costs by Conti J 1 December 2004
HIGH COURT – S514/2004
Application for special leave to appeal filed 23 December 2004
Application for special leave to appeal 8 September 2005
dismissed by Hayne and Callinan JJFEDERAL MAGISTRATES COURT – SYG2819/2005
Application for judicial review lodged 4 October 2005
Application dismissed with costs by Scarlett FM 12 December 2005
FULL FEDERAL COURT – NSD2572/2005
Application for leave to appeal lodged 21 December 2005
Orders and judgment of Heerey J 3 May 2006
dismissing application with costsHIGH COURT – S152/2006
Application for special leave to appeal lodged 25 May 2006
Application for special leave to appeal 16 November 2006
dismissed by Gummow and Heydon JJRRT
Second application for review of delegate’s 19 November 2006
decision lodgedRRT found it had no jurisdiction 15 February 2007
FEDERAL MAGISTRATESS COURT – SYG829/2007
Application for judicial review lodged 12 March 2007
Directions hearing 27 March 2007
In the decision of the Refugee Review Tribunal of 13 February 2007 relating to the second application to it by the applicant to review the decision of the delegate, the Tribunal decided:
Where the Tribunal has received a valid application for review of an RRT-reviewable decision and carried out its statutory duty to review the decision under s.414 of the Act the Tribunal is precluded from again considering the matter. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZIIV v MIMA [2006] FMCA 322.
……
The applicants lodged a previous application to the Tribunal on 2 July 2002 for review of the delegate’s decision of 13 June 2002. The Tribunal accepted that application for review and conducted a review. The Tribunal has already discharged its functions under the Act to review the delegate’s decision of 13 June 2002. The Tribunal notes that the applicants have unsuccessfully sought judicial review of the Tribunal’s earlier decision: see SZAUV v MIMIA [2004] FMCA 647, SZAUV & Ors v MIMIA [2004] FCA 1745, SZAUV & Ors v MIMIA [2005] HCATrans 710, SZAUV & Ors v MIMIA [2005] FMCA 1840, SZAUV v MIMIA [2006] FCA 578 and SZAUV & Ors v MIMIA & Anor [2006] HCATrans 641.
……
As the Tribunal has already discharged its functions under the Act to review the delegate’s decision, the application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision.
The Court agrees with those findings by the Tribunal.
The first respondent submits that the application for judicial review does not raise an arguable case for the relief claimed, and accordingly the application should be dismissed under Rule 44.12 of the Federal Magistrates Court Rules 2001 (“the Rules”). The Court agrees that the application does not raise an arguable case, as the Tribunal had previously carried out its statutory duty to review the decision of the delegate.
The second submission for the first respondent is that the applicant has no reasonable prospect of successfully prosecuting the proceeding before the Court, and it should be dismissed under Rule 13.10. For the reasons stated above the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.
The third submission for the first respondent is that the proceeding or claim for relief is frivolous or vexatious. Sub-rules 13.11(1) and (2) provide as follows:
(1)If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
(a)that any proceeding instituted by the person may not be continued without leave of the Court; and
(b)that the person may not institute a proceeding without leave of the Court.
(2) An order under subrule (1) may be made:
(a)on the Court’s own motion; or
(b)on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or
(c)on the application of the Registrar.
“Vexatious” means “unsupportable in law, disclosing no cause of action, groundless”: Dey v Victorian Railways Commissioners (1949) 78 CLR 62.
“An action may be deemed frivolous and vexatious if it is so obviously untenable that it cannot possibly succeed”:Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 19 ALR 621.
“The question of whether the legal proceedings are in fact “vexatious” or “instituted without reasonable cause” is also an objective one…Continual attempts to re-litigate matters raised and rejected on previous occasions constitutes an abuse of process and have been found to satisfy the tests of “vexatious” or “instituted without reasonable cause” within the meaning of O 21”:Freeman (a bankrupt) v National Australia Bank & Anor (2006) 230 ALR 213 per Sundberg, Kenny, and Gyles JJ at [19] referring to the decision of the primary judge, who, it was decided, had not committed any error of law.
The Court is satisfied that the applicant has instituted a vexatious proceeding in this Court (being the application for judicial review filed on 12 March 2007) and that the applicant has habitually, persistently, and without reasonable grounds, instituted other vexatious proceedings in the Federal Court of Australia and the High Court of Australia.
The fourth submission by the first respondent is that the proceedings before the Court are an abuse of process.
The Court refers to and adopts the reasons for decision contained in para.12 of His Honour Federal Magistrate Driver in S1000 of 2003 v Minister for Immigration [2004] FMCA 963 as follows:
The issues have been considered in this Court on a number of occasions. I refer, for example, to the decision of Federal Magistrate Raphael in SZDDG v Minister for Immigration [2004] FMCA 420, in particular at paragraphs 8 to 10. I agree with the principles outlined by Federal Magistrate Raphael in paragraph 8 and 9 of that decision:
In Walton v Gardiner (1992-1993) 177 CLR 378 at 392-393, Mason CJ, Deane and Dawson JJ said:
“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 proprietary 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.”
The jurisdiction of a superior court in such case was correctly described by Lord Diplock in Hunter v The Chief Constable of the West Midlands Police (1982) AC 529 at [536] as:
“the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people”.
The Court finds that the application before it for judicial review is foredoomed to fail. The application seeks to litigate anew a case which has already been disposed of by earlier proceedings. To allow the proceeding to continue would bring the administration of justice into disrepute among right thinking people. The application for judicial review is an abuse of process.
The application is dismissed pursuant to Rule 13.10.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 22 May 2007
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