SZBDE v Minister for Immigration - [2005] FMCA 1950

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBDE v MINISTER FOR IMMIGRATION

[2005] FMCA 1950

MIGRATION – Delegate’s decision refusing protection visa – application for judicial review – previous merits and judicial review applications – application dismissed as abuse of process.

Acts Interpretation Act 1901 (Cth) s.8
Federal Magistrates Court Rule 13.10(c)
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.483A
Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119
SZBDE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 370
SZBDE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 42
SZDBE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 719
SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821
SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844

Applicant:

SZBDE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2908 of 2005

Delivered on:

23 December 2005

Delivered at:

Sydney

Hearing date:

23 December 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms J Bautista

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the respondent’s costs on an indemnity basis in the sum of $2,500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 15 July 2003 reference N02/41946 or for review of the decision of the delegate of the first respondent dated 23 February 2002 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2908 of 2005

SZBDE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 11 October 2005 under s.483A of the Migration Act 1958 (Cth) and s.39B of the Judiciary Act 1903 (Cth). It seeks orders by way of judicial review in relation to a decision made by a delegate of the Minister on 23 February 2002. The delegate refused an application for a protection visa, which had been lodged by the applicant on 7 December 2001. He had arrived in Australia from Bangladesh in November 2001.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), however the repeal does not affect the continuance of these proceedings (see Sch.1 cl.41 of the amending Act, and the Acts Interpretation Act 1901 (Cth) s.8).
The application was given a first Court date before me on

15 November 2005. On that occasion the applicant was served with an affidavit prepared by the Minister's solicitors in support of an interlocutory application for the summary dismissal of the application. I gave directions for the filing of that application and its listing today, and am satisfied that the documents in support, including the Minister's submission, were served on the applicant in time for him to prepare his response. He has filed an outline of submissions, to which I shall refer.
The Minister's interlocutory application seeks the summary dismissal of the proceedings under Federal Magistrates’ Court Rule 13.10 in any of its paragraphs. I propose to address the matter under paragraph (c), and to consider whether the bringing of the application and its continuance is an abuse of the processes of the Court. I shall address the significance of a history of litigation engaged in by the applicant in relation to its protection visa application, and whether the present application is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 119 at [61]).
The applicant's history of litigation is recited in an affidavit of Katherine Jane Gray sworn 31 October 2005 and the attached documents.
It is plain that the applicant received actual notice of the decision of the delegate, since he lodged an application for merits review of that decision with the Refugee Review Tribunal within the mandatory time limit.
In its decision handed down on 15 September 2003, the Tribunal carefully examined all the claims made by the applicant to fear persecution in Bangladesh on the basis of his claimed political activities. It was satisfied that the applicant's involvements in politics had been at a very low level, and was not satisfied that he had a profile which resulted in mistreatment by members of the BNP or by the then present government of Bangladesh. It also considered that he would not be at risk if he moved to another area of Bangladesh.
On 7 August 2003, the applicant filed in this Court an application for judicial review of the decision of the Tribunal. It adopted a precedent commonly seen, which is a list of general heads of judicial review without particulars.
His matter came on for hearing before Driver FM on 20 January 2005, and his Honour dismissed the application (see SZBDE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 42). His Honour noted that no amending application had been filed, but written submissions had been filed which made various contentions. The applicant's oral submissions were that he genuinely feared persecution should he be required to return to Bangladesh. His Honour held that there was no jurisdictional error in the decision of the Tribunal, and that it was therefore a privative clause decision.
The applicant filed a notice of appeal in the Federal Court on

7 February 2005. It was considered by Tamberlin J at a hearing held on 29 March at which the applicant appeared. His Honour gave reasons for dismissing the appeal (see SZBDE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 370). His Honour concluded:
The decision of the Magistrate is based on detailed reasoning in relation to the matters raised before him. This reasoning is set out in the Magistrate's reasons for judgment. I am not persuaded that there is any error disclosed in these reasons.
The applicant then filed an application for special leave to appeal to the High Court of Australia, adopting a common form which had no reference to his matter. On 8 September 2005 Hayne and Callinan JJ published reasons and orders refusing special leave in this and 28 other applications adopting the same form (see SZDBE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 719). Their Honours said:
Common form documents, used in this way, do not advance any useful argument on behalf of an applicant for special leave.
None of these applications would enjoy any prospect of success.
Within 28 days, the applicant had brought his present application. He has adopted a form of application currently circulating in Sydney. This is identical to an application which I dismissed as an abuse of process in many proceedings, including SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549. The application seeks review, not of the Tribunal’s decision, but of the preceding delegate's decision, based on an argument of invalidity arising from a formal defect in the notification of that decision.
For the reasons I gave in SZGMZ, I consider that the application has no prospects of success whatsoever, and its filing, after a protracted course of litigation in relation to a decision of a Tribunal on merit's appeal from that delegate's decision, is an abuse of process.
Wilcox J upheld my decision in SZGMZ (see SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844). In another similar matter, Wilcox J said:
The appeal would enjoy no prospect of success because it is obvious that the delegate's decision is now of no significance, having regard to the fact that the delegate's decision was reviewed by the Tribunal. There would be no possibility of any court, in the exercise of its discretion, intervening to set aside the delegate's decision. (see SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821 at [8])
The applicant's outline of submissions in response to the Minister’s motion is an eight page document, which I have seen in other cases and which appears to have been prepared by the same author as prepared the precedent application. It refers to various legal authorities in relation to summary dismissal, and I have applied the principles referred to in those authorities to the extent that they are relevant.
The submission contains other contentions which I have sufficiently addressed above or in my previous judgment, but makes little attempt to address the points based on abuse of process made in SZGMZ.
The submission attempts at its end to further protract the matter by purporting to raise a constitutional point. However, I do not consider that a constitutional point is involved, for the reasons I gave in SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316 at [20]-[23]. Moreover, in my opinion, the application can be characterised as plainly untenable on the grounds which I have identified in SZGMZ, without my having to address any alleged constitutional point.
The abusive nature of the current proceeding became manifest in the applicant's oral submissions to me. He said that he did not understand that the present application was not a challenge to the Refugee Review Tribunal decision, and said that indeed it was that decision which he wanted set aside and reconsidered. He said that he brought this case because the Tribunal did not believe him.
Plainly, the applicant has not appreciated that his opportunity to obtain the setting aside of the Tribunal's decision has been fully exhausted in his previous litigation. Nor does he understand the need to consider the merits of the applications he is bringing in the Court, or even to understand what they are.
In all the circumstances, I consider it appropriate to make the orders sought in the notice of motion.
I also consider it appropriate to make a broadly framed direction to the registry of this Court not to accept further applications concerning any aspect of the decision-making on the applicant's application for a protection visa without the prior leave of the Court.
The Minister's interlocutory application also sought an order declaring the applicant to be generally a vexatious litigant under rule 13.11. However, the affidavit and submission did not fully address the considerations raised by that rule and, in my opinion, a direction framed as above should sufficiently address the applicant's currently revealed propensity towards unmeritorious litigation.
I consider an order for costs on indemnity basis is also appropriate.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 10 January 2006