SZAYH v Minister for Immigration (No. 2)
[2007] FMCA 1476
•16 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAYH v MINISTER FOR IMMIGRATION & ANOR (No. 2) | [2007] FMCA 1476 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – Tribunal functus officio – proceedings vexatious and an abuse of process – request for orders under r.13.11 should be made on application pursuant to r.13.11(4). |
| Federal Magistrates Court Rules 2001, rr.13.03A, 13.10, 13.11 Migration Act 1958, s.476 |
| Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 SZEBS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 456 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 |
| Applicant: | SZAYH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1827 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 August 2007 |
| Date of Last Submission: | 16 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2007 |
REPRESENTATION
No appearance by the applicant.
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to r.13.10 the application be dismissed.
The first respondent's application for orders pursuant to r.13.11 be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1827 of 2007
| SZAYH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 12 June 2007 the applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 11 May 2007. A copy of that decision is annexure A to the affidavit of Angela Margaret Nanson affirmed on 28 June 2007 where it is described as a decision signed on 11 May 2007 and, according to the covering letter which also forms part of that annexure, it was posted to the applicant on 15 May 2007.
The proceedings are before the Court today on the applicant's application that the respondent show cause why a remedy should not be granted in exercise of this Court's jurisdiction under s.476 of the Migration Act 1958 (“Act”) in respect of that decision of the Tribunal.
By an amended response dated 23 July 2007 the first respondent opposes the application on the grounds that it is frivolous and vexatious and amounts to an abuse of the process of the Court in light of the applicant's litigation history which is particularised in that amended response. The applicant's litigation history is also set out, in slightly different detail, in Ms Nanson's affidavit.
It is also important to note that the applicant is not present today. He sent a letter to the Court received in my chambers this morning seeking an adjournment for medical reasons. That application was refused at the outset of the hearing today on the basis that the application and supporting medical certificate did not comply with the orders made on 6 August 2007 requiring that the applicant's medical certificate, were he to file one, specify that he is unable to attend Court and also specify the medical condition which is the basis of any such adjournment application. The medical certificate which accompanied the applicant's letter does not meet those criteria and, most particularly, does not say that the applicant is not able to attend Court. Consequently, the first respondent applied for the matter to proceed to hearing pursuant to r.13.03A(e) of the Rules of the Court, which application was granted.
In considering the show cause application it is important to have regard to the applicant's litigation history referred to in the Minister's amended response and in the affidavit of Ms Nanson. In particular, in her affidavit Ms Nanson deposes to the following important facts:
a)on 24 May the Minister's delegate refused the applicant's application for a protection visa;
b)on 20 May 2003 the Tribunal gave a decision handed down on June 2003 which affirmed the delegate's decision refusing to grant a protection visa;
c)on 5 November 2004 Driver FM dismissed the applicant's application for judicial review of the Tribunal's decision;
d)on 24 January 2005 Moore J in the Federal Court dismissed the applicant's appeal from the orders of Driver FM;
e)on 26 May 2005 the High Court dismissed the applicant's application for special leave to appeal from the decision of Moore J;
f)undeterred, the applicant brought proceedings again in this Court, and on 26 July 2005 Smith FM dismissed the applicant's application as an abuse of the process of the Court;
g)although Ms Nanson's affidavit says that it was on 20 June 2005, research has indicated that it was on 16 September 2005 that Madgwick J dismissed the applicant's application for leave to appeal from the decision of Smith FM;
h)on 18 November 2005 Smith FM dismissed a further application by the applicant;
i)not referred to in Ms Nanson's affidavit, but also revealed by research is that on 16 March 2006 Conti J dismissed an application for leave to appeal from the decision of Smith FM;
j)also not referred to in the affidavit of Ms Nanson, but revealed by research is that on 5 October 2006 the High Court dismissed an application for special leave to appeal from a decision of Conti J;
k)on 27 February 2007 Moore J dismissed a further application for leave to appeal from the decision of Smith FM;
l)following that dismissal the applicant filed a further application to the Tribunal for review of the decision of the delegate five years previously; and
m)on 11 May 2007 the Tribunal gave its decision in respect of that review in which it held that it had already discharged its function and no longer had jurisdiction in relation to the delegate's decision on the basis that it had given a decision handed down on 17 June 2003.
These proceedings are an application for review of that second decision of the Tribunal.
The question is whether the Tribunal's decision is affected by jurisdictional error and whether it should be set aside. In my view, the Tribunal did not err. It was correct in concluding that it was functus officio and that it did not have power to conduct a second review of the delegate's decision. So much is made clear by the decisions of Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301; Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18; in SZEBS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 456; and SZASP v Minister for Immigration & Citizenship [2007] FCA 771.
Given my finding that the Tribunal did not err in reaching the conclusion that it reached the application will be dismissed.
The next question to be addressed is on what basis the application is to be dismissed. The Minister submits that the proceedings are frivolous or vexatious or an abuse of process and should be dismissed pursuant to r.13.10 of the Rules of Court. I am of the same view. Indeed, in not dissimilar circumstances in SZASP’s case Moore J held at [22] that an application which sought a review of a second decision of the Tribunal was an abuse of process. So it is here. It is apparent that the applicant will continue to file proceedings and possibly applications for review to the Tribunal regardless of the decisions of this Court and of courts superior to it.
In the circumstances, I am of the view that the proceedings are an abuse of the process of the Court as well as vexatious and should be dismissed pursuant to r.13.10.
The Minister has further sought an order, presumably pursuant to r.13.11, that the applicant be prohibited without leave of the Court from bringing any further proceedings concerning the delegate's decision dated 24 February 2002 or the two subsequent decisions of the Tribunal. Essentially, the Minister seeks an order which flows from the conclusion that the applicant is a vexatious litigant.
The powers of the Court to prevent litigants seeking the resolution of disputes by bringing application to it is prescribed by the Rules as empowered by the Court's statute. The only powers that the Court has to make such an order are those which are provided by the Rules and the statute: Commonwealth Trading Bank v Inglis (1974) 131 CLR 311.
The order which the Minister seeks is not the one which is expressly provided for in the Rules in that the Court, if it is satisfied that a person has instituted a vexatious proceedings – as has been concluded on this occasion – and the Court is further satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings may, relevantly, order:
that the person may not institute a proceeding without leave of the Court.
Alternatively, if a particular litigant is the subject of vexatious litigation that person may, by application, seek an order that:
the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.
The order sought today is not of the latter nature, but more of the former nature. The powers which the Rules provide in relation to vexatious litigants generally are that the Court may order that any proceeding then on foot may not be continued without the leave of the Court, which is not the case here or, as I have said, that the person may not institute a fresh proceeding without leave of the Court.
The order which the Minister seeks today is of a different nature, namely that the applicant may not institute a particular sort of proceeding without leave of the Court.
Certainly, that order can be characterised as a sub-set of the orders which r.13.11(1)(b) empowers the Court to make, but I am not satisfied that I have power to make an order circumscribed in that way. The power which the Court has is to prevent a vexatious litigant from instituting any proceeding rather than particular sorts of proceedings.
But in any event, before such an order could be made the Court would have to be satisfied that the person in question had habitually, persistently and without reasonable grounds instituted vexatious proceedings.
The Rules of the Court do not limit the Court's consideration of this issue to proceedings which have been brought in this Court. The Court may consider proceedings brought in other courts, and thus consideration may be given to the proceedings brought by the applicant in the Federal Court and in the High Court.
The first group of proceedings commencing with the decision of Driver FM and concluding with the dismissal of the application for special leave to appeal on 26 May 2005, was a set of proceedings which the applicant was perfectly entitled to bring. It was only the subsequent proceedings which resulted in the decision of Smith FM on 26 July 2005 and the appeals which followed it, and the further proceedings determined by Smith FM on 18 November 2005, which were abuses of process.
In total, those subsequent proceedings amount to six applications to various Courts, seven if the current proceedings are included.
The determination of whether conduct is persistent and habitual turns in large part on the determination by the applicant to bring proceedings regardless of their merit and regardless of them having previously been determined by the Courts. That is to say, an important consideration is that the applicant will continue to bring proceedings regardless of the outcomes of the proceedings as they are determined. I think in the circumstances of this case that the applicant is likely to bring such proceedings.
However, as I have said, the applicant is not present in Court today and has not had an opportunity to address this application. He should be given an opportunity to do so and if the Minister wishes to bring an application under r.13.11(3) by an application under r.13.11(4) then that would be the proper mechanism by which to put the applicant on notice and give him an opportunity to address the Minister's concerns.
In the circumstances the application for an order under r.13.11 will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 15 October 2007
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