SZBEI v Minister for Immigration
[2005] FMCA 1538
•10 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBEI v MINISTER FOR IMMIGRATION | [2005] FMCA 1538 |
| MIGRATION – Delegate’s decision refusing protection visa – judicial review of validity – applicant previously sought merits review and judicial review of Tribunal decision – application dismissed summarily as an abuse of process. |
Judiciary Act 1903 (Cth), s.39B
Federal Court Rules, O.54B r.5
Federal Magistrates Court Rules 2001, rr.13.10(a), 13.10(c), 16.05(2)(a)
Migration Act 1958 (Cth), s.474(1)
Blair v Curran (1939) 62 CLR 464
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
SZBEI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 895
SZBEI v Minister for Immigration [2005] FMCA 351
SZGMZ v Minister for Immigration [2005] FMCA 1549
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
| Applicant: | SZBEI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1837 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 10 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance by or on behalf of the applicant |
| Counsel for the Respondent: | Mr J Kettle |
| 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 in the sum of $2,900.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 29 July 2003 reference N02/41637 or for review of the decision of the delegate of the respondent dated 11 January 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 |
SYG 1837 of 2005
| SZBEI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an interlocutory application by the Minister, who is the only proper respondent to the present application filed by the applicant on 12 July 2005. The Minister seeks the summary dismissal of the application under r.13.10(a) and (c) of the Federal Magistrates Court Rules 2001 (“the FMC Rules”) on the ground that no reasonable basis for the application is disclosed (c.f. Federal Court Rules O.54B r.5, adopted by Sch.3 Pt.2 of the FMC Rules), and that the proceeding is an abuse of the process of the Court. I propose to deal with the application on the latter basis, addressing the significance of a history of litigation engaged in by the applicant and whether the present application is “plainly untenable and unarguably doomed to fail” (c.f. NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [61]).
The applicant’s principal application was made returnable before me at a first court date on 10 August 2005. On that occasion, the applicant appeared and was present when I gave directions setting the matter down for a hearing today. I directed that the respondent should file and serve her foreshadowed interlocutory application and any affidavits in support by 16 August 2005. The motion was filed on that day. I am satisfied that there was compliance with my orders in relation to service of the interlocutory application and the Minister’s submissions, and that the applicant has had time to prepare a response for presentation today.
There was no appearance by or on behalf of the applicant when the matter was called. The Court had received this morning a facsimile, being a one‑page document headed “Application for an Adjournment of Hearing”. The document said:
I am the applicant in this matter. I am very sick and unable to attend the hearing. I am sorry for any inconvenience but my health situation is beyond my control. I request for an adjournment for the hearing. I will attend any future hearing based on my health, but I hope I will be fine in a few weeks.
I do not agree with the respondent’s submission. I wish I could come today in the hearing but regrettably I am too sick to do that.
I also want to file and serve an amended application to disclose detailed grounds of my application. I request the honourable court to grant leave to do that.
The request for an adjournment was not accompanied by any medical evidence to verify the claims of inability to attend, and I was not prepared to adjourn the application in the absence of any such evidence. I therefore proceeded with the hearing of the motion in the absence of the applicant. The orders which I make today can be set aside by the Court under r.16.05(2)(a) of the FMC Rules, but the applicant will have to satisfy the Court as to the truth of his claim to have been unfit to attend. He will also need to point to some merit in his principal application if he wishes it to be revived.
The applicant’s previous history of litigation in relation to his claims for a protection visa is as follows. He arrived in Australia in September 2001 and applied for a protection visa on 11 October 2001. The application was refused by a delegate on 11 January 2002. There is no doubt that the applicant actually received notification of that decision, since he lodged an application for review on 12 February 2002.
The applicant presented documentary evidence and attended a hearing before the Refugee Review Tribunal (“the Tribunal”). The Tribunal gave a decision on 29 July 2003. It concluded that “the applicant’s evidence was generalized and vague”, and was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
The applicant applied for judicial review by this Court under s.39B of the Judiciary Act 1903 (Cth), and the application came on for hearing before Mowbray FM on 7 March 2005. His Honour gave reasons for dismissing the application (see SZBEI v Minister for Immigration [2005] FMCA 351). He addressed various grounds argued by the applicant and concluded:
[39]I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision, having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476.
The applicant filed a notice of appeal to the Federal Court. The appeal was heard by Hely J, and his Honour gave orders dismissing the application on 16 June 2005. He examined grounds of appeal brought in an amended notice of appeal, and published reasons for dismissing the appeal (see SZBEI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 895). His conclusion was:
[10]The appeal must be dismissed as there is no substance in any of the grounds of appeal, nor has anything else been put to me which goes anywhere near showing that Mowbray FM committed an error in the decision to which he came, or that the RRT was guilty of any legal error going to its jurisdiction.
The effect of the conclusions of Mowbray FM, upheld on appeal, was that the question whether the Tribunal’s decision was a privative clause decision against which relief is precluded by s.474(1) of the Migration Act 1958 (Cth) was finally decided against the applicant. Principles of estoppel thereafter prevent the applicant seeking to re‑litigate that issue by raising any further grounds for judicial review in fresh proceedings relating to Tribunal’s decision (see Blair v Curran (1939) 62 CLR 464 at 531‑532 and Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).
The applicant appears to have accepted the finality of his litigation in relation to the Tribunal’s decision, but in his new application to this Court he has adopted a precedent application which has circulated in recent times. This seeks to justify renewed litigation in relation to the administrative decision‑making which determined his protection visa application, by challenging the validity of the primary decision of the delegate which was affirmed by the Tribunal. I have today already summarily dismissed such an application framed in identical terms to the present application, and have given my reasons for characterising the application as bound to fail and amounting to an abuse of process in circumstances which I regard as indistinguishable to the present (see SZGMZ v Minister for Immigration [2005] FMCA 1549 (“SZGMZ”)).
I adhere to the opinions which I gave in that case, and which I shall not repeat. I consider that the present application is also an abuse of process of the Court. It has no prospect of success in obtaining relief directed at the delegate’s decision and its continuance, in my opinion, does amount to an abuse of process for the reasons I have given in SZGMZ. I shall direct that the parties be sent a copy of my revised reasons published in that matter.
Although the present applicant’s history of litigation is less extensive than that of the applicant in SZGMZ, the documents he presented in the course of his litigation reveals him to be someone who will avail himself of precedents which raise claims of no merit, and will do so in a repeated fashion. I think it appropriate in those circumstances to give a direction that he should not be allowed to file any further application concerning decision‑making on his protection visa application without first obtaining the leave of the Court. I am not, however, in the present case prepared to order costs against the applicant on an indemnity basis.
RECORDED : NOT TRANSCRIBED
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 27 October 2005
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