SZBDK v Minister for Immigration
[2006] FMCA 592
•6 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBDK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 592 |
| MIGRATION – Protection visa application – judicial review of the delegate’s decision – decision previously affirmed by the Refugee Review Tribunal in its decision upheld by the Federal Magistrates Court, the Federal Court and the High Court – new application dismissed as an abuse of process. |
| Federal Magistrates Court Act 1999 (Cth), ss.14, 15 Federal Magistrates Court Rules 2001 (Cth), r.13.10 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.66, 91X |
| Kosi v Minister for Immigration [2003] FMCA 340 NBGZ v Minister for Immigration [2005] FCAFC 119 |
| First Applicant: | SZBDK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3211 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 April 2006 |
REPRESENTATION
| Applicant: | Applicant appeared in person with the aid of a Tamil interpreter |
| Advocate for the Respondents: | Ms Z Brauer |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The first respondent’s interlocutory application filed on 16 February 2006 is upheld.
The application for judicial review filed by the applicant on
3 November 2005 is dismissed.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Mr Bruce MacCarthy, File No: NO2/43590) made on 17 June 2003 and handed down on
11 July 2003, or the decision of the delegate of the Minister for Immigration (of Nehmat Abdo File No: CLF2002/357) made on
26 June 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 sum of $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3211 of 2005
| SZBDK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Proceedings
By an interlocutory application filed on 6 February 2006, the first respondent seeks an order that the 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 grounds that:
1.An order that the proceedings be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the basis that:
(a)no reasonable cause of action or basis for the application is disclosed;
(b)further or in the alternative, the proceedings or claim for relief is frivolous or vexatious; and
(c)further or in the alternative, the proceeding or claim for relief is an abuse of the process of the Court.
2.Further, an order that the Court direct that no further application by the Applicant to review the Refugee Review Tribunal decision handed down on or for review of the decision of the delegate of the respondent’s made on or for review of any notification of those decisions be accepted for filing without prior leave of the Court.
3.An order that the applicant pay the respondent’s costs on an indemnity basis.
4.Such further or other order as the Court sees fit.
For the purposes of the interlocutory application, the first respondent tendered and applied for the following affidavit of Zoe Elizabeth Brauer sworn on 10 January 2006 (“affidavit of Ms Brauer”) 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 on 3 November 2005 for judicial review of the decision of the delegate of the Minister for Immigration, made on
26 June 2002, refusing to grant the applicant a Protection (Class XA) visa. The delegate’s decision is identified as file no: CLF2002/357.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZBDK”.
Background
This brief background material is contained in the Refugee Review Tribunal (“the Tribunal”) decision. It indicates that the applicant is a citizen of India and arrived in Australia on 2 December 2001. On
20 December 2001, he lodged an application under the Act for a Protection (Class XA) visa with the Department of Immigration. On 26 June 2002, a delegate of the Minister refused to grant the protection visa and on 18 July 2002, the applicant applied to the Tribunal for review of the delegate’s decision (affidavit of Ms Brauer, p.58).
The applicant had previously lodged an application for a business visa in Mumbai on 8 November 2001. He described his occupation as “Business-Company Managing Partner” and said his employer was an engineering company. He also said he resided at a Chennai address.
In his protection visa application, the applicant said he was born in Adirampattinam, India in 1956. He was of Tamil extraction and was Muslim by religion. He set out his claims in an accompanying unsigned and undated statement. He said his family were long-term residents of Adirampattinam and that he ran a business there and in Thanjavur. He was one of the important members of Dravida Munnettra Kazhagam (“DMK”) political party in the Thanjavur district. He said he took over his father-in-law’s fishing business and made a lot of money. Also that he donated 100,000 rupees to the DMK in 1985, and donated land for party premises. This was because the Anna Dravida Munnettra Kazhagam (“ADMK”) ruling party had won four elections in a row but did not help the village. His appointment as DMK Thanjavur district party secretary angered the ADMK and some of its members stabbed him. The applicant reported the incident to the police to no avail. Then the applicant lists in considerable detail, disputes with the ADMK party (affidavit of Ms Brauer, pp.60-61).
Litigation hstory
Ms Brauer, solicitor for the respondents, prepared a convenient summary of the litigation history of the applicant in her affidavit and I adopt paragraphs 4 to 15 for the purposes of this judgment:
4.On 20 December 2001, the Applicant lodged an application for a protection visa with a supporting statement with the Department of Immigration and Multicultural and Indigenous Affairs.
5.On 30 May 2002, the Department wrote to the Applicant requesting further information with regard to the claim submitted in his application. On 25 June 2002, the applicant responded to that letter.
6.On 26 June 2002, the Respondent’s delegate determined not to grant a protection visa to the Applicant.
7.On 18 July 2002, the Applicant lodged an application for review with the RRT.
8.On 24 March 2003, the RRT wrote to the Applicant requesting additional information. On 4 April 2003, the RRT receive the applicant’s response to this request.
9.On 17 June 2003, the RRT affirmed the delegate’s decision not to grant a protection visa to the Applicant.
10.On 8 August 2003, the Applicant applied for a judicial review of the RRT decision in the Federal Magistrates Court of Australia.
11.On 4 March 2005, Federal Magistrate Driver of the Federal Magistrates Court of Australia dismissed the Applicant’s application.
12.On 3 May 2005, the applicant filed a notice of appeal from the judgment of Federal Magistrate Driver referred to in the preceding paragraph.
13.On 16 May 2005, His Honour, Justice Tamberlin, exercising the appellate jurisdiction of the Federal Court of Australia, dismissed the notice of appeal referred to in the preceding paragraph.
14.On 7 June 2005, the Applicant filed an application for special leave to appeal in the High Court.
15. On 6 October 2005, the High Court of Australia (constituted by Justices Hayne and Callinan) dismissed the Applicant’s application for special leave to appeal.
Applicant’s submissions
The applicant filed written submissions in support of his application and I reproduce only those submissions which make reference to the issue of jurisdictional error and ignore the items that are a recitation of the applicant’s original claim:
1.This application is not vexation nor an abuse of process. A delegate decision can be reviewed under certain circumstance. A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified to the applicant and therefore, the procedures that were required by law to be observed in connection with the making of the decision were not observed.
…
3.The Tribunal member did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedure that was required by the act or regulations to be observed in connection with the making of the decision were not observed (Muin, Lie’s v MIMIA). The Tribunal does not have the power to take this decision in to effect. S66(1) and s66(2) of the Migration Act 1958 was not observed. A breach of the rules of natural justice occurred in connection with the making of the decision.
4.The DIMA decision was effected by an “error of law” and “jurisdictional error”.
5.The DIMIA did not consider the application as a refugee despite not giving me fair chance to provide oral arguments.
6.The procedure that was required to be observed under the Migration Act 1958 in connection with the making of the decision was not observed.
7.The tribunal ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicate actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making power and attracts s.39B Judiciary Act 1903 as per Gaudron J in Abebe v Commonwealth (1999) 162 ALR 1 at 33 paragraph [113] thus, subject of the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief;
8.The delegate ignored the merits of the claims. It did not take into consideration the verdict from India country report.
9.I am a genuine refugee under the UN Convention and sub class 866 of the Migration Act 1958 but the authority has not considered my claims.
10.I believe that there is a lack of procedural fairness in my case. I refer Justice Markel went on to Cite Craig v South Australia (1995) 184 CLR 163 At 197: “If an administrative tribunal falls in to an error of law which causes in to identify a wrong issue, to ask itself a wrong question, to ignored relevant documents, to rely on irrelevant materials or at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds it’s authority or powers. Such an error is jurisdictional error, which will invalidate any order or decision of the tribunal, which reflects it.
11.While deciding the protection visa application, the DIMIA went through a range of documents listed as “part c”. One of the documents listed in part c, relating to India others to establish my claim as a refugee. It appeared that the tribunal otherwise referred to these documents in negative aspects not to grant me protection visa.
12.I believe that my application has not been taken in to consideration properly, the decision made by the DIMIA and RRT was relied upon some general facts; therefore establishes a “denial of procedural fairness”. It appears to me that a letter in similar terms had sent to recent High Court case (Moin vs RRT). (copied without correction).
Respondent’s submissions
Ms Brauer, solicitor appearing for the respondents, provided written submissions in support of her application and I adopt paragraphs 1 to 10 of those submissions for the purposes of this judgment:
1.In light of the prior proceedings commenced in the Federal Magistrates Court of Australia, the Federal Court of Australia and the High Court of Australia these proceedings are self evidently an abuse of process and warrant dismissal: Lindsey v. Phillip Morris Ltd [2004] FCA 797.
2.The Respondent submits that the Applicant's pursuit of merits review of the Delegate's Decision, and his subsequent pursuit of judicial review in relation to the validity of the RRT Decision, which affirmed the Delegate's Decision, is clearly "conduct of the party inconsistent with the application for relief”: SAAP v MIMIA [2005] HCA 24 at [80]; see also SZGKR v MIMIA [2005] FMCA 1316.
3.The Respondent further submits that the application discloses no reasonable cause of action because, even if there were any jurisdictional error affecting the Delegate's Decision (which is not admitted), it was “cured” by the decision of the RRT.
4.As a general principle, the Court should not hear a challenge to a primary decision where there is a de novo review decision, because the review decision “cured” the primary decision: Wu v MIEA (1994) 48 FCR 294, Wilcox J at 298-299. The proposition that a valid Tribunal decision will “cure” a primary decision has been approved by the Full Court: see Yilmaz v MIMIA (2000) 100 FCR 495, Gyles J at [92]-[96]; Zubair v MIMIA [2004] FCAFC 248; and MIMIA v Ahmed [2005] FCAFC 58 (affirmed by the Full Court in Uddin v MIMIA [2005] FCAFC 218); NAMW v MIMIA [2005] FMCA 783.
5.While what is precisely meant by the metaphor of a delegate’s decision being “cured” is not entirely clear, the metaphor has been adopted at the highest judicial levels: Twist v Randwick Municipal Council (1976) 136 CLR 106, Mason J at 116. It is clear, at least, that it means that a court should not give relief in respect of a delegate’s decision when a person affected by the decision has had the opportunity to seek a de novo merits review and that opportunity had been taken. It is to be noted that the Applicant cites Srey v MIMIA [2003] FCA 1292, SZCTH v MIMIA (No.1) [2004] FMCA 211 and NAMG v MIMIA (No.1) [2003] FMCA 541 - all of which are cases in which no de novo review by a Tribunal occurred.
6.Moreover, the structure of the Act leaves the Minister and her delegates functus officio to make decisions by way of reconsideration, or further exercise of the power to grant or refuse visas, under section 65 of the Act, in circumstances where a merits review had been sought and obtained under Part 7 of the Act in relation to a protection visa application. The futility of litigating the Delegate's Decision is such that the application is an abuse of process: see SZGMZ v MIMIA [2005] FMCA 1549 at [23] and [24].
7.To the extent the Applicant asserts that there was no proper notification of the Delegate's Decision:
(a)it is not contested and it is patently clear that the Applicant did in fact apply within time to the RRT, and the RRT accepted that it had jurisdiction and reviewed the application made by the Applicant to it; and
(b)section 66(4) of the Migration Act ("Act") provides that failure to give notification of a decision does not affect the validity of the decision: see Re MIMIA; Ex parte Palme (2003) 216 CLR 212 at [41] to [46]; see also SZGKR v MIMIA [2005] FMCA 1316. Accordingly, there is no merit to the Applicant's ground of review asserting that the failure to notify him of the Delegate's Decision invalidated that decision.
8.The unwarrantable and unexplained delay (of over three years) in raising the present challenge also constitutes justification for dismissal of the application in the exercise of the Court's discretion without determining whether there has been any jurisdictional error: R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 at 568.5 and 570.3; Naguit & Anor v MIMIA [2005] FMCA 930 at [18]-[23]; S58 of 2003 v MIMIA [2004] FCA 541.
9.There is plainly unwarranted delay in this case justifying the withholding of relief: The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400. A delay of more than a year (as here) should ordinarily lead to relief being refused in the exercise of the court’s discretion: Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at 495-496.
10.In light of the length of the Applicant’s delay and the absence of any evidence excusing it, it is submitted that the present application should be dismissed upon that basis without consideration of its merits.
Reasons
The applicant appeared before me for directions on 6 December 2005 where it was foreshadowed that the first respondent would seek to have his application dismissed on an interlocutory basis on the grounds that the proceedings disclosed no reasonable cause of action, the claim was frivolous or vexatious and an abuse of process of the Court. I ordered the applicant to file written submissions to meet the first respondent’s challenge and the applicant has complied with that order. I gave the applicant an opportunity to make oral submissions to the Court in support of his application, but he indicated that he would rely on his written submissions.
The Minister seeks summary dismissal of the application pursuant to r.13.10(c) of the Rules. Due to the litigation history engaged in by the applicant, set out in summary form at [8] above, I propose to deal with this application as an abuse of process of the Court, and ask whether the present application is “plainly untenable and unarguably doomed to fail”: NBGZ v Minister for Immigration [2005] FCAFC 119 at [61].
The applicant initially sought review of the Tribunal decision in this Court before His Honour Driver FM, who made the comment in SZBDK v Minister for Immigration [2005] FMCA 227 at [9]:
I find that the decision of the RRT is free from any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
The applicant exercised his right of appeal to the Federal Court in proceedings NSD445/2005. His Honour Tamberlin J dismissed the application on 16 May 2005 and concluded at [6]:
In the absence of any submissions made to me on the appeal, and in view of the regularity in the reasons for judgment of the Federal Magistrate and the Tribunal, I find there was no jurisdictional error disclosed in the present case and I dismiss the appeal with costs.
The applicant then exercised his right to seek special leave to appeal to the High Court, filing an application on 7 June 2005 in proceedings S271/2005. The matter came before the Court on 6 October 2005 before Their Honours Hayne and Callinan JJ. Justice Hayne in the transcript of the proceedings made the following observation:
The application to this Court is for special leave to appeal against the judgment of the Federal Court dismissing the applicant’s appeal to it. There is no reason to doubt the correctness of the decision of the Federal Court that no appealable error has been shown, and accordingly the application must be dismissed.
As I have indicated in previous decisions made in similar circumstances, the applicant in this matter appears to have accepted the finality of his litigation in respect of the Tribunal’s decision. However his new application to this Court has adopted a precedent application which has been circulating recently. This seeks a renewal of litigation, challenging the primary decision of the Minister’s delegate, which had already been affirmed by the Tribunal. The applicant has now availed himself such a precedent. I note that a similar approach has been adopted by others. It has come to the attention of this Court and was referred to by Her Honour Barnes FM in SZGKO v Minister for Immigration [2005] FMCA 1254 and His Honour Smith FM in SZGMZ v Minister for Immigration [2005] FMCA 1549 (“SZGMZ”). I made similar observations in my previous decision of SZFRF v Minister for Immigration [2006] FMCA 48.
The application before this Court duplicates the applications considered in SZGMZ and of SZFRF v Minister for Immigration where the delegate’s decisions are challenged on the basis that they are invalid due to alleged failure to file notification procedures under s.66 of the Act.
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 (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ:
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 my opinion, the reasoning of Smith FM in SZGMZ at [22]-[26], clearly addresses and articulates the four reasons, as His Honour put it, why an application such as the present is an abuse of process and has no prospects of success in obtaining the relief it seeks. This application is a persistent attempt by the applicants to bring an unmeritorious application 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 [2003] FMCA 366 where the re-invigoration of proceedings may have been pursued to extend the applicant’s stay in this country. Reference was also made in NALE v Minister for Immigration to another decision of Driver FM of Kosi v Minister for Immigration [2003] FMCA 340 [18]:
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 that I should give a direction to the Court Registry that it decline any further applications from the applicant concerning any aspect of the decision-making process on his protection visa application. If the applicant can demonstrate an issue affecting his current entitlements which has not been decided against him in 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 this Court. Regretfully the applicant has obtained these pleadings without clear understanding. The pleadings lack relevance to their particular situation. The identical pleadings commonly submitted were done so by applicants who were previously before this Court, the Federal Court and the High Court and who have failed in their review applications at all levels. This identical application, except for the names and details of the individual case, has been placed before me in three separate interlocutory hearings today.
I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $2,300.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 24 April 2006
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