SZBCE v Minister for Immigration
[2005] FMCA 1933
•12 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCE v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1933 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of a delegate of the Minister not to grant a protection visa – primary decision – where delegate’s decision has been reviewed by the Refugee Review Tribunal – where application for judicial review of the RRT decision has previously been dismissed by the Federal Magistrates Court – where appeal has previously been dismissed by Federal Court – where application for special leave to appeal has previously been dismissed by the High Court. PRACTICE & PROCEDURE – Summary dismissal – abuse of process – failure to disclose a reasonable cause of action – vexatious proceeding – res judicata. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.66, 476 Federal Magistrates Court Rules 2001 rr.13.10, 13.11 |
| Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1017 SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697 SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 818 (6 October 2005) |
| Applicant: | SZBCE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3121 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 December 2005 |
| Date of Last Submission: | 12 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Ms Gray Sparke Helmore |
ORDERS
The notice of motion is upheld.
The application for judicial review filed on 26th October 2005 is dismissed:
(a)as an abuse of process; and
(b)application fails to disclose a reasonable cause of action; and
(c)application is vexatious.
That no further application by the Applicant to review the decision of a delegate of the Minister made on 12th April 2002 or the decision of the Refugee Review Tribunal handed down on 8th July 2003 be accepted for filing without leave of the Court.
That the Applicant may not institute any proceeding for review of the decision of a delegate of the Minister made on 12th April 2002 or the decision of the Refugee Review Tribunal handed down on
8th July 2003 without leave of the Court.
That the Applicant pay the First Respondent’s costs fixed on an indemnity basis in the sum of $3,014.00 and together with Court costs of $288.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3121 of 2005
| SZBCE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of a delegate for the Minister for Immigration and Multicultural and Indigenous Affairs. The decision was made on 12th April 2002. The delegate refused a protection visa to the applicant.
The applicant is a citizen of Bangladesh who arrived in Australia on 30th November 2001. On 13th December 2001 he lodged an application for a protection class XA visa but that application was refused by a delegate of the Minister on 12th April 2002. The applicant has filed this application seeking a review of that decision. He says that he was advised a migration agent who is currently overseas, a Mr Mollah.
In his application the applicant says the delegate's decision was not made according to law; that the delegate did not observe the prescribed method of delivering and notifying a decision; the delegate did not have the power to give that decision to the applicant, and finally, the decision was infected by jurisdictional error and breach of procedural fairness.
In grounds set out on the second page the applicant says there is a breach of the rules of natural justice, the delegate who purported to make the decision did not have jurisdiction to do so, the Minister does not have the power to take this decision into effect, the decision was infected by error of law, the application is late but there are decisions such as Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 and Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 which say that the application can be heard. The applicant also says that the application is not vexatious nor an abuse of process because a delegate's decision can be reviewed by the Court under certain circumstances.
The grounds are interesting. If in fact a delegate of the Minister does not have jurisdiction to give that decision, it would affect a number of decisions that have been made and in fact if the Minister does not have the power this would be major challenge to the Migration Act which would no doubt see the need for some hasty legislation by the government. Whilst the references in the application to sub-s. (1) and (2) of s.66 are interesting, sub-s (4) of s.66 would appear to cure any apparent problems.
The Minister's lawyers have brought a notice of motion seeking summary dismissal of this application because even though the applicant says that the application is neither vexatious nor an abuse of process, they say that it is. The applicant says in his application that a delegate's decision can be reviewed by the Court under certain circumstances. That may in fact be so, but one circumstance in which the Court cannot review a decision by the delegate is when it has already been reviewed; and that is what the Minister is saying.
The Minister says that the application has been reviewed already by the Refugee Review Tribunal. In fact the applicant has admitted that when he referred to a submission that he made to the RRT which he said was denied. The applicant says that his application was prepared for him with the assistance of his migration agent. I believe that to be true because an applicant who seeks review of a decision of the delegate of the Minister and then tells the Court that he does not know the decision of the delegate would seem not to know a great deal about his own case.
The applicant says that the Refugee Review Tribunal did not review the delegate's decision. That of course is patently wrong. That is exactly what the Refugee Review Tribunal did and the Refugee Review Tribunal did not make any jurisdictional error when it did so.
The reason that I can say that with such confidence is that the applicant has already applied to this Court for review of the decision of the Refugee Review Tribunal and Driver FM heard the application on
10th December 2004 and on that day just over a year ago his Honour found that there was no jurisdictional error and dismissed the application (SZBCE v Minister for Immigration [2004] FMCA 1017).
The applicant then sought to appeal and he did so by lodging a notice of appeal on 23rd December 2004. On 2nd June 2005 Bennett J exercising the jurisdiction of the Full Court of the Federal Court heard and dismissed that appeal (SZBCE v Minister for immigration & Multicultural & Indigenous Affairs [2005] FCA 697). The applicant then sought special leave to appeal against that decision to the High Court of Australia. On 6th October 2005 Hayne and Callinan JJ dismissed that application (SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 818 (6 October 2005). On 26th October 2005 the applicant applied to this Court again seeking a review of the delegate's decision.
The application is an abuse of process. The application does not show on its face any reasonable cause of action. There cannot be a reasonable cause of action when a party seeks to litigate or relitigate a matter that has already been litigated and appealed and is over. Whilst it is put to me that the application is also frivolous as well as vexatious, I am not prepared to find that it is frivolous but I am in no doubt that it is vexatious. It is vexatious not just because it is an abuse of process of the Court, it is vexatious not just because it seeks to relitigate something that has already been heard and determined, it is vexatious because it seeks to litigate a decision of the delegate of the Minister that has already been reviewed by the Refugee Review Tribunal and it makes no disclosure on its face of any of the previous proceedings.
It is an application that purports to be something that it is not. It has been brought, quite clearly, for an ulterior motive. It has not escaped my notice that the decision of the High Court of Australia was made on 6th October and this application seeking to start the proceedings again was filed on 26th October. Quite clearly the applicant has made sure that he commenced these proceedings within 28 days of the last application being dismissed. This of course allows the automatic reissue of a bridging visa which expires 28 days over an applicant's next Court date. It is not difficult to ascertain why this spurious application has been brought, which is to procure the continuation of a bridging visa.
Applicants are going to need to learn that delay in this Court is not something that they can rely on. Applications filed in this Court will come before a Federal Magistrate very quickly. If they are applications which have merit, they will of course be given a hearing date and applicants who need legal advice to bring proceedings to review decisions of the Refugee Review Tribunal will be given that advice free of charge by means of the scheme. Applications that are without merit will also be before the Court very quickly and will be heard very quickly.
I propose to dismiss this application.
There is an application for costs on an indemnity basis. In my view, it is appropriate to order indemnity costs in respect of an abuse of process or a vexatious proceeding. The Court has the power, which I believe comes under s.15 of the Federal Magistrates Act 1999 to take necessary action to deal with abuses of its own process. There is clear authority, especially in the decision of Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225, that costs should be awarded on an indemnity basis in circumstances such as an abuse of process. I believe that this is an appropriate case for costs on an indemnity basis and I propose to order accordingly.
I also note that when the applicant filed his application on 26th October this year the filing fee was waived. In my view, now that this application has been found to be an abuse of process, it is appropriate to revisit that decision. I revoke the order waiving the filing fee.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 December 2005
3
5
3