SZBDL v Minister for Immigration & Anor
[2007] FMCA 1066
•22 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBDL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1066 |
| MIGRATION – Application foredoomed to fail – abuse of process – functus officio – no arguable case – vexatious proceeding – application dismissed – not to continue any proceeding without leave – not to institute proceeding without leave – registry not to accept document for filing without leave. |
| Federal Magistrates Court Rules 2001, rr.13.10, 13.11, 44.12 |
| SZBDL v Minister for Immigration and Multicultural Affairs [2007] HCATrans 13 S1000 of 2003 v Minister for Immigration [2004] FMCA 963 SZDDG v Minister for Immigration [2004] FMCA 420 Walton v Gardiner (1993) 177 CLR 378 Hunter v The Chief Constable of the West Midlands Police [1982] AC 529 L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 19 ALR 621 |
| Applicant: | SZBDL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1465 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 22 June 2007 |
| Date of last submission: | 22 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr A. Markus of Australian Government Solicitor |
ORDERS
The application is dismissed pursuant to Rules 13.10(a), (b) and (c), and Rule 44.12(a).
The Court orders on its own motion:
(i)that any proceeding instituted by the applicant may not be continued without leave of the Court;
(ii)that the applicant may not institute a proceeding without leave of the Court;
(iii)that the Registry must not accept for filing any document from the applicant, or on his behalf, without first obtaining leave of the Court.
The applicant has no reasonable prospect of successfully prosecuting the proceeding or claim and it is dismissed pursuant to Rule 13.10(a).
The proceeding or claim for relief is frivolous or vexatious and is dismissed pursuant to Rule 13.10(b).
The application is an abuse of process of the Court and is dismissed pursuant to Rule 13.10(c).
The application does not raise an arguable case and it is dismissed pursuant to Rule 44.12(1)(a).
The applicant is to pay the first respondent $2,500 being its legal costs in the matter.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1465 of 2007
| SZBDL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 8 May 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 April 2007. The Tribunal held in that decision that it did not have jurisdiction to review the applicant’s case.
History of proceedings
The history of the applicant’s litigation is as follows:
·The applicant arrived in Australia on 13 July 2001 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 19 July 2001. That application was refused by a delegate of the Minister on 22 April 2002, and by the Tribunal on review on 16 July 2003.
·
On 8 August 2003 the applicant filed an application for judicial review with the Federal Magistrates Court (SYG 1565/03). Federal Magistrate Driver dismissed that application on
11 February 2005: [2005] FMCA 58.
·The applicant filed a notice of appeal with the Federal Court of Australia on 1 March 2005 (NSD 300/2005); that appeal was dismissed by Tamberlin J on 8 August 2005: [2005] FCA 1091.
·On 1 September 2005 the applicant filed an application for special leave in the High Court (S405/2005). That application was dismissed on 15 December 2005: [2005] HCA Trans 1025.
·On 9 January 2006 a second application for judicial review was lodged with this Court (SYG 67/2006). Federal Magistrate Lloyd-Jones dismissed the application on 9 March 2006 on the basis that the Court lacked jurisdiction and that there had been delay: [2006] FMCA 349.
·
An application for leave to appeal against the decision of Lloyd-Jones FM was lodged with the Federal Court of Australia on
29 March 2006 (NSD 635/2006). That application was dismissed on 14 June 2006: [2006] FCA 865.
·On 7 July 2006 the applicant filed an application for special leave in the High Court (S228/2006). That application was dismissed on 31 January 2007: SZBDL v Minister for Immigration and Multicultural Affairs [2007] HCATrans 13.
·On 26 February 2007 the applicant lodged an application with the RRT seeking once again to review the decision of the delegate, which had already been the subject of review by the Tribunal in the first Tribunal decision. On 12 April 2007 the RRT found that it did not have jurisdiction to consider the applicant’s application (“the second RRT decision”).
·The applicant then filed the current application in this Court, seeking judicial review of the Tribunal’s decision pursuant to the Migration Act 1958 (Cth) (“the Act”).
The matter has therefore been before:
(i)the delegate once;
(ii)the RRT twice;
(iii)this Court three times;
(iv)the Federal Court of Australia twice;
(v)the High Court of Australia twice.
The application
In his application, the applicant set out two grounds as follows:
(1)Judicial review is sought on the grounds that the Refugee Review Tribunal failed to accord the natural justice.
(2)Judicial review is sought on the grounds that the Refugee Review Tribunal failed to exercise its jurisdiction under the Migration Act and/or acted in excess of its jurisdiction.
The Court refers to and adopts the reasons for decision contained in para.12 of His Honour Federal Magistrate Driver in S1000 of 2003 v Minister for Immigration [2004] FMCA 963 as follows:
The issues have been considered in this Court on a number of occasions. I refer, for example, to the decision of Federal Magistrate Raphael in SZDDG v Minister for Immigration [2004] FMCA 420, in particular at paragraphs 8 to 10. I agree with the principles outlined by Federal Magistrate Raphael in paragraph 8 and 9 of that decision:
In Walton v Gardiner (1992-1993) 177 CLR 378 at 392-393, Mason CJ, Deane and Dawson JJ said:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus it has long been established that regardless of the proprietary 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….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.
The jurisdiction of a superior court in such case was correctly described by Lord Diplock in Hunter v The Chief Constable of the West Midlands Police (1982) AC 529 at [536] as:
the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people.
Conclusions and orders of the Court
The Court finds that the application by the applicant to the Refugee Review Tribunal dated 26 February 2007 is “foredoomed to fail” and “seeks to litigate anew a case which has already been disposed of in earlier proceedings”. To direct that the RRT proceed with the review sought would be “manifestly unfair to the respondents in the matter before this Court, and would bring the administration of justice into disrepute among right thinking people.”
The application to this Court seeks an order that the Tribunal allow the applicant to “litigate anew a case which has already been disposed of” by decisions on 11 February 2005 and 12 April 2007. The Court finds that the application to it to order the Refugee Review Tribunal to conduct a review of the decision of the delegate in circumstances where it conducted a review, and rightly decided that it did not have jurisdiction to conduct a second review, is an abuse of process of the Court, and orders that the application is dismissed pursuant to Rule 13.10(c).
On 12 April 2007 the Tribunal found that it did not have jurisdiction to hear the applicant’s second application to review the decision of the delegate. The Court finds that the Tribunal was correct in reaching the conclusion that it no longer has jurisdiction in relation to the matter.
It is functus officio.
The first respondent seeks that the application to the Court be dismissed. The Court finds that the application does not raise an arguable case and dismisses it pursuant to Rule 44.12(1)(a).
The Court finds that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim and dismisses it pursuant to Rule 13.10(a) also.
The applicant has filed three applications with this Court seeking to review the decisions of the Refugee Review Tribunal, one of which affirmed, and the other refused to review, the decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant lodged an appeal, and in another application sought leave to appeal, to the Federal Court of Australia relating to the matter. The applicant has twice sought special leave of the High Court in relation to the matter.
“An action may be deemed frivolous and vexatious if it is ‘so obviously untenable that it cannot possible succeed’, or if ‘useless expense’ would be involved in allowing the pleadings to stand”: L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 19 ALR 621; 33 FLR 170.
The Court is satisfied pursuant to Rule 13.11(1) that the applicant has instituted a vexatious proceeding in this Court and that the applicant has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or other Australian Courts.
Accordingly, the application is dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 5 July 2007
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