SZAXN v Minister for Immigration
[2006] FMCA 46
•16 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAXN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 46 |
| MIGRATION – Protection visa application – judicial review of the Tribunal’s decision – decision upheld by Federal Magistrates Court, Federal Court and High Court – new application dismissed as an abuse of process. |
Federal Magistrates Court Act 1999 (Cth), ss.14, 15
Migration Act 1958 (Cth), ss.66, 91X
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), Rule 13.10
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
Walton v Gardiner (1993) 177 CLR 378
Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
SZBJM v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404
S442 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1240
Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 919
Bal v Minister for Immigration & Multicultural Affairs [2001] FCA 1191
NALE v Minister for Immigration [2003] FMCA 366
Kosi v Minister for Immigration [2003] FMCA 340
| Applicant: | SZAXN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG2921 of 2005 |
| Delivered on: | 16 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 16 January 2006 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondents: | Mr B Cramer |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The first respondent’s Notice of Motion filed on 1 December 2005 is upheld.
The application for judicial review filed on 12 October 2005 is dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth).
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Dr Ron Witton File No: N02/44257) made on 15 May 2003 and handed down on 10 June 2003 or the decision of the delegate of the Minister for Immigration (of Anita Chan File No: CLF2002/40691) handed down on 16 August 2002 is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,000 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2921 of 2005
| SZAXN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Motion filed on 1 December 2005, the respondents seek an order that the applicant’s application be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Court Act 1999 (Cth) on the following grounds:
1.That the proceeding be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that:
(a)the proceeding is frivolous or vexatious; or
(b)the proceeding is otherwise an abuse of process.
2.Further or in the alternative, that the proceedings are barred on the basis of the doctrine of res judicata.
3.Further or in the alternative, that the applicant is estopped from bringing this application on the basis of the doctrines of issue estoppel and Anshun estoppel.
4.That the applicant not be permitted to institute any proceedings in this Court, seeking review of the decision made by the second respondent on 15 May 2003 and handed down on 10 June 2003 or of the decision made by a delegate of the first respondent on 16 August 2002, without first obtaining the leave of the Court, pursuant to Rule 13.11(3)(b) of the Federal Magistrates Court Rules;
5.That the applicant pay the first respondent’s costs of the proceeding and this notice of motion on an indemnity basis; and
6.Any other order that the Honourable Court sees fit.
For the purposes of this application, the respondent tendered and applied for the affidavit of Benjamin Alexander Cramer sworn on
6 December 2005 (“the affidavit of Mr Cramer”) to be admitted into evidence.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 12 October 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 May 2003 and handed down on 10 June 2003, affirming the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) made on
16 August 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZAXN”.
Background
The applicant, who claims to be a citizen of India, arrived in Australia on 31 July 2002. On 6 August 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 16 August 2002 the delegate refused to grant a protection visa and on 6 September 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (the affidavit of Mr Cramer at page 5).
In his primary application, the applicant described himself as a 55 year old married Hindu Gujerati Indian from Ahmedabad who had been a proprietor of a construction business from 1978 until his departure for Australia in July 2002. He stated that his construction business was fairly large and that he used to undertake large government and private building projects and was very successful. The applicant stated that he was a supporter of the Congress Party and used to be a sponsor of political campaigns in his area. He stated that his construction company used to buy all the timber it needed from a Mr Narendra Modi and at the last election Mr Modi was the candidate for the Bharatiya Janata Party (BJP) which “finally won the elections”. The applicant stated that after the elections he continued to carry out his timber business and to buy timber as usual. He stated that he was later informed by a very reliable source that Mr Modi was engaged in illegal timber selling and when the applicant secretly inquired about this matter he came to know that Mr Modi was doing so “using his political powers”. The applicant stated that he had a “very strict policy as far as the environment was concerned” and was very angry that he had been buying illegal timber, cut from the rainforests of India. He stated that he immediately stopped buying timber from Mr Modi and this caused him a considerable business loss.
The applicant stated that after some time Mr Modi called him and asked him to come to his office in Ahmedabad. He asked the applicant why he had stopped buying timber and the applicant told him about the alleged illegal timber business and that he would not buy any further timber from him. He stated that Mr Modi abused him in front of other people and that when he returned home Mr Modi threatened him over the telephone regarding his allegations. The applicant stated that Mr Modi challenged him to prove the claim that he cut timber illegally. The applicant stated that he disclosed the name of the person who had informed him of the illegal business and “this matter later turned into a big issue”.
The applicant stated that he joined “the environment conscious organisations” in Gujerat state and launched a campaign against Mr Modi. He stated that the Congress Party also made maximum use of this and this made Mr Modi very angry with the applicant and he used his political power to mistreat him and used the riots “early this year’ to take his revenge. That applicant stated that he was arrested by the police and was detained at the police station for interrogation. He stated that later he came to know that this was the work of Mr Modi. The applicant claimed he was beaten severely requiring hospitalisation and treatment for four days after being unconscious. He stated that when he was in the hospital Mr Modi’s “henchmen” came and threatened him to say nothing more about their illegal timber business or they would kill him (see affidavit of Mr Cramer at pp.8-9).
Litigation history
Mr Cramer, Solicitor for the respondent, prepared a convenient summary of the litigation history of the application and I adopt paragraphs 2-12 for the purpose of this judgment:
[2]On 7 July 2003, the applicant applied to the Federal Magistrates Court for review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 15 May 2003 and handed down on 10 June 2003. The Federal Magistrates Court proceedings were allocated file number SZ1274/2003 (“the previous proceedings”). (A copy of the Tribunal’s decision and the application filed on
7 July 2003 are annexed to the affidavit of Mr Cramer.)[3]On 17 October 2003, the first respondent filed a Notice of Motion seeking summary dismissal of the previous proceedings. (A copy of the Notice of Motion is annexed to the affidavit of Mr Cramer.)
[4]On 26 November 2003, the first respondent filed an affidavit of Sharon Hanstein sworn on 26 November 2003. (A copy of the affidavit of Ms Hanstein is annexed to the affidavit of Mr Cramer.)
[5]On 26 November 2003, Federal Magistrate Scarlett dismissed the application in the previous proceedings and published the judgment of SZAXN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 560). (A copy of the reasons for judgment is annexed to the affidavit of Mr Cramer.)
[6]On 23 December 2003, the applicant filed an application for extension of time to file and serve a notice of appeal in the Federal Court of Australia (Federal Court Reference No: NSD2525/2003). (A copy of the application is annexed to the affidavit of Mr Cramer.)
[7]On 19 March 2004, Conti J dismissed the Federal Court application and published the judgment SZAXN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 275. (A copy of the reasons for judgment is annexed to the affidavit of Mr Cramer.)
[8]On 13 April 2004, the applicant filed an application for special leave to appeal to the High Court (High Court File No: S137/2004). (A copy of a fax from the High Court dated
16 April 2004 is annexed to the affidavit of Mr Cramer.)[9]On 25 October 2004, the first High Court application was deemed abandoned. (A copy of the Certificate of Deemed Abandonment is annexed to the affidavit of Mr Cramer.)
[10]On 29 October 2004, the applicant filed another application for special leave to appeal in the High Court (High Court File No: S422/2004). (A copy of a fax from the High Court dated
2 November 2004 is annexed to the affidavit of Mr Cramer.)[11]On 8 September 2005, Justices Hayne and Callinan dismissed the second High Court application. (A copy of the orders and reasons and pronouncement of orders are annexed to the affidavit of Mr Cramer.)
[12]On 12 October 2005, the applicant filed an application in the Federal Magistrates Court again seeking judicial review of the Tribunal’s decision made on 15 May 2003 and handed down on 10 June 2003 (Federal Magistrates Court File No: SYG2921/2005). (A copy of the application is annexed to the affidavit of Mr Cramer.)
Reasons
This is an interlocutory application by the Minister filed on
1 December 2005. The Minister seeks the summary dismissal of the application pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that the proceedings are frivolous or vexatious or are otherwise an abuse of process of the Court. Due to the litigation history engaged in by the applicant, set out above in summary form at paragraph 9, I propose to deal with the application on the basis that it is an abuse of process of the Court and whether the present application is “plainly untenable and arguably doomed to failure”: NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs at [61].
The bringing of the interlocutory application was foreshadowed at the first Court date hearing before me on 15 November 2005.
The Minister’s application was filed on 1 December 2005 and was made returnable before me on 16 January 2006. The application was supported by an affidavit annexing numerous Court documents showing the history of the litigation pursued by the applicant in relation to the decision-making on his application for a protection visa which was lodged on 6 August 2002. The applicant was present at the first Court date and it was clear that he was on notice at that time of the Minister’s intention to seek summary dismissal of his application. The applicant was required to file and serve a short outline of submissions by 23 December 2005 but this order was not complied with.
The current application filed in this Court is plainly an attempt to re-litigate a case already disposed of and it should be dismissed as an abuse of process: Walton v Gardiner per Mason CJ, Deane and Dawson JJ at 393:
“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. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. 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.”
In Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs 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 …”
Similarly, in SZBJM v Minister for Minister for Immigration & Multicultural & Indigenous Affairs at ]29]-[30], Magdwick 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 litigation 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 Minister for Immigration & Multicultural & Indigenous Affairs at [29]; Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs at [40]; Bal v Minister for Immigration & Multicultural Affairs at [24]-[27] where the relationship between Anshun estoppel and abuse of process is briefly discussed.
This application is a persistent attempt by the applicant to bring unmeritorious applications to the Court. I therefore propose to dismiss the present application. In coming to this decision I am also guided by the decision of his Honour Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where the issue of re-invigorating a proceeding may have been pursued to extend the applicant’s stay in this country. Reference is also made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where his Honour 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.”
Conclusion
For the above reasons, I consider the present application is an abuse of process and it is appropriate to dismiss it summarily. I propose to make the orders sought by the first respondent. I also consider the circumstances which I have described justify an order for costs on an indemnity basis and that I should give a direction to the Court Registry that it should decline to receive further applications from the applicant concerning any aspect of the decision-making on his protection visa application. If the applicant can demonstrate an issue affecting his current entitlements which has not been decided against him in his previous litigation and which requires adjudication about the decision-making, then he would be allowed to commence another proceeding. However, the applicant will have to show a controversy which properly requires the attention of the Court.
I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis in the amount of $2,000.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 16 January 2006