SZBGY v Minister for Immigration
[2006] FMCA 269
•9 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBGY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 269 |
| MIGRATION – Application to Review Decision of a Delegate of the Minister after judicial review in relation to the decision of the Refugee Review Tribunal – notice of motion seeking summary dismissal – whether no reasonable cause of action – whether abuse of process. |
Migration Act 1958 (Cth), ss.91X, 424A, 483A
Judiciary Act 1903 (Cth), s.39B
Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292
Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2
SZDCJ v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCA 1284
SZGGS v Minister for Immigration [2005] FMCA 1071
SZGKO & Anor v Minister for Immigration [2005] FMCA 1254
SZGMZ v Minister for Immigration [2005] FMCA 1549
SZGPU v Minister for Immigration [2005] FMCA 1388
Walton v Gardiner (1993) 177 CLR 378
| Applicant: | SZBGY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG3043 of 2005 |
| Delivered on: | 9 February 2006 |
| Delivered at: | Sydney |
| Hearing date: | 9 February 2006 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an Arabic interpreter.
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The respondent’s Notice of Motion filed on 29 November 2005 is upheld.
The respondent’s Notice of Objection to Competency filed on
2 November 2005 is upheld
The application for judicial review filed on 2 October 2005 is dismissed as incompetent
The court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of R A Fordham File No: NO1/37099) made on 27 October 2001 and handed down on
20 November 2001 or the decision of the Delegate of the Minister for Immigration (of Marisa Dominello File No: CLF2000/58575) handed down on 15 January 2001 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,800 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3043 of 2005
| SZBGY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By a notice of motion filed on 29 November 2005, the respondent seeks an order that the application filed in the Federal Magistrates Court on 20 October 2005 be dismissed on one or more of the following basis:
a)No reasonable cause of action is disclosed in relation to the proceeding or claim for relief: r.13.10(a) of the Federal Magistrates Court Rules 2001 (“the Rules”); and/or
b)The proceeding or claim for relief is frivolous or vexatious: r.13.10(b) of the Rules; and/or
c)The proceeding or claim for relief is an abuse of the process of the Court: r.13.10(c) of the Rules.
In the alternative, by a notice of objection to competency filed on
2 November 2005, the respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that:
a)The decision is a privative clause decision; and
b)The decision is a primary decision, as that term is defined in s.476(6) of the Migration Act 1958 (“the Act”); and
c)Pursuant to s.476(1) of the Act the Federal Magistrates Court has no jurisdiction in relation to a primary decision; and
d)In any event, contrary to s.477(1A) of the Act the application has not been lodged within 28 days of the applicant being notified of the primary decision; and
e)By virtue of s.477(2) of the Act, the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in s.477(1A) of the Act.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Act, filed in the Sydney Registry of the Federal Magistrates Court on 20 October 2005 for a judicial review of the decision of the Delegate of the Minister (“the Delegate”) made on 15 January 2001 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Delegate.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZBGY”.
For the purposes of the respondent’s application, the respondent tenders and applies for the affidavit of Andrew John Crockett sworn
29 November 2005 (“Affidavit of Mr Crockett”) to be admitted into evidence.
Background
The applicant, who claims to be a citizen of Israel/Occupied Territories, arrived in Australia on 16 August 2000. On 16 November 2000 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Act. On 15 January 2001 a delegate of the Minister refused to grant a protection visa and on 9 February 2001 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision (Affidavit of Mr Crockett p.15).
In his application for a protection visa the applicant stated that he is a single male, Palestinian citizen of Muslim faith. He stated that his parents and 10 siblings remained in Gaza, with two others in Libya. He stated that by profession he is a business manager. Also that his last place of employment was a company in Rafah where he was a sales manager from December 1999 until July 2000. Further that he had 18 years of education and that he had pursued tertiary studies part-time from 1996 until his departure (Affidavit of Mr Crockett p.17).
Mr Markus, solicitor for the respondent, prepared a convenient summary of the applicant’s claim and the procedural background of the application which I have adopted and reproduced as follows:
[7]In summary, the applicant claimed a well founded fear of persecution by the Palestinian Authority in Israel/Occupied Territories on the basis of his political opinion because of his previous involvement in Hamas. In particular, the applicant claimed that he had been a member of the Hamas media wing and was involved in organising and distributing pamphlets. He claimed to have been interrogated by members of the Palestinian Authority Police in October 1996 and March 1997 and that his home had been searched by the Police and he had been requested to attend the local Police Station for questioning.
[8]The Minister’s delegate refused the applicant’s application for a protection visa on 15 January 2001. The delegate found that the applicant did not have a real chance of Convention-based persecution should he return to Israel and that his fear of persecution on return was consequently not well-founded. Accordingly, the delegate was satisfied that that applicant was not a person to whom Australia had protection obligations under the Refugees Convention and refused to grant the applicant a protection visa.
[9]On 9 February 2001 the applicant applied to the Tribunal for a review of the delegate’s decision.
[10]On 24 October 2001 the applicant attended a hearing held by the Tribunal and gave further evidence in support of his claims. He also claimed at this stage that he feared harm from Hamas on the basis that he would be accused of being with the Palestinian Authority.
[11]The Tribunal accepted that he had been involved with Hamas but that it was at a very low level and found his account of being of concern to the Palestinian Authority to be implausible. This finding was also based on the fact that the applicant had had no difficulty in obtaining permission to leave the country. The Tribunal then considered what future risk there was of harm coming to the applicant. In light of the fact that, from 1999 until his departure in 2000, he had not been questioned by the Palestinian Authority, found that the Authority had at that time no adverse interest in him and that there was no prospective risk that he would be of concern in regard to his past membership of Hamas.
[12]This finding was also supported by the material which suggested that the Palestinian Authority had in recent times taken a much more lenient attitude to members of Hamas at the highest levels and thus, the Tribunal concluded, the Authority would not be interested in somebody of the applicant’s level.
[13]The Tribunal considered that the applicant had fabricated his claim that he was at risk from Hamas itself. It also found that the summonses produced by the applicant in support of his claims had no relationship to his long terminated relationship with Hamas.
[14]Finally, the Tribunal found that any investigation of the applicant’s father and brothers did not relate to his own terminated low-level of association with Hamas.
[15]The Tribunal’s decision, made on 27 October 2001, was handed down on 20 November 2001. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
On 20 August 2003, an application under s.483A of the Migration Act was filed by the applicant in the Sydney Registry of the Federal Magistrates Court. The application sought review of the Tribunal decision made on 27 October 2001 and handed down on 20 November 2001. The Tribunal’s decision affirmed the decision of the delegate of the first respondent dated 15 January 2001 refusing to grant the applicant a protection visa.
On 1 November 2004, Barnes FM made orders dismissing the application pursuant to r.13.03A(c) of the Rules.
Respondent’s application
The written submissions filed by the respondent in these proceedings raise the following issues:
[17]Rule 13.10(a) and (b) of the Federal Magistrates Court Rules deal with dismissal of a proceeding or claim for relief if it appears to the Court that no reasonable cause of action is disclosed in relation to the proceeding or claim for relief or the proceeding or claim for relief is frivolous or vexatious.
[18]The first respondent submits that the application filed on 20 October 2005 discloses no reasonable cause of action because even if there were any jurisdictional error affecting the decision of the delegate, it was “cured” by the decision of the Tribunal: SZGKO & Anor v MIMIA [2005] FMCA 1254 (“SZGKO”) at [8] to [16] per Barnes FM; and SZGMZ v MIMIA [2005] FCMA 1549 (“SZGMZ”) at [1] and [21] to [28] per Smith FM.
[19]Further, the first respondent submits that the applicant’s proceeding is frivolous or vexatious in that, given the effect of a valid Tribunal decision on defects in the delegate’s decision, the asserted grounds of review are plainly “untenable”: SZGKO at [27].
[20]In any event, even if reasonable cause of action is disclosed and the proceeding is not frivolous and vexatious, the proceeding should nonetheless be dismissed as an abuse of the process of the Court.
[21]Rule 13.10(c) of the Federal Magistrates Court Rules deals with dismissal of a proceeding or claim for relief if that proceeding or claim is an abuse of process of the Court.
[22]See Walton v Gardiner (1992-1993) 177 CLR 378 at 392 – 393 Mason CJ, Deane and Dawson JJ.
[23]In the circumstances, the first respondent submits that the present proceeding is an abuse of the process of the Court: see, for example, SZGGS v MIMIA [2005] FMCA 1071 at [10] per Driver FM.
Reasons
The applicant appeared before me for first court date directions on
22 November 2005, at which time the respondent’s solicitors foreshadowed their application for summary dismissal. At that time, the nature of the interlocutory proceedings brought by the Minister was explained to SZBGY, requiring him to respond to that motion.
A timetable was provided to the parties. However the applicant in these proceedings has not filed any submissions and declined to make any substantial oral submissions during the hearing.
There is no evidence before me that after the matter was dismissed by Barnes FM on 1 November 2004, the applicant sought to have those orders set aside as he is entitled to do under r.16.05(2)(a) of the Rules. The applicant took no further action until 20 October 2005 when he filed the present proceeding seeking a review of the delegate’s decision which was made on 15 January 2001. No reference is made to the Tribunal decision made on 27 October 2001 handed down on
20 November 2001.
The current pleadings follow a precedent which consists of lists of general heads of judicial review without any particulars suggesting any relevance to the particular decision of the delegate. The pleadings are a formulaic approach commonly seen in this Court by applicants who have failed in previous judicial review applications and are now attempting to overcome that impediment by commencing fresh proceedings challenging the delegate’s decision. The first of the applicant’s grounds claims that there was a breach of the rules of natural justice in that he was not notified of the delegate’s decision. The claim is not particularised but it is unusual because the delegate’s decision was made on 15 January 2001 and on 9 February 2001 the applicant applied for a review of the delegate’s decision. The second ground contends that the delegate’s decision was made without authority, due to the delegate’s failure to give the applicant notification of the decision in compliance with s.66 of the Act. I consider that the applicant has no prospect of success in an argument that failure to comply with the notification requirements arising under s.66 would invalidate a decision made by the delegate.
In the third ground, the applicant claims that the decision was an improper exercise of power conferred by the Act, pursuant to which the decision was purported to be made. This is not particularised and no affidavit material has been filed either clarifying or supporting this claim. The fourth ground firstly acknowledges that the filing of this current application is late. However the applicant relies on the decisions of Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.
If the author is attempting to suggest invalidity of the delegate’s decision because of the failure to notify the applicant; this is inconsistent with his own actions because he did file an application with the Tribunal seeking review within the specified time limit. The failure to prosecute the matter before Barnes FM and the subsequent refiling of an application in these current proceedings, have nothing to do with the validity of the delegate’s decision in respect of the delegate’s obligation to notify the applicant of his decision.
In the fifth ground, the applicant claims bringing of the proceedings is “not vexatious nor an abuse of process” because the Court has the power to review a delegate’s decision in certain circumstances. The applicant has not attempted to demonstrate how this principal may apply, however in these circumstances it appears to be totally misconceived.
Mr Markus appearing for the first respondent submitted that the application filed in this Court on 20 October 2005 discloses no reasonable cause of action because even if there were any jurisdictional error affecting the decision of the delegate, it was cured by the decision of the Tribunal: SZGKO and SZGMZ.
I am guided by the decision of Smith FM in SZGMZ, particularly paragraphs [21] to [28], which identify four arguments which appear to have been raised by the original author of these pleadings and subsequently adopted by others. The arguments are unchanged, yet the circumstances of individual applicants differ. This results in an attempt to use pleadings that have little relationship to the facts of a case, which are set out in various documents, containing the chronology of events from past hearings.
The issue is further emphasised by the reluctance of the applicant in the current proceedings to attempt to meet the argument presented on the Minister’s behalf, although he was warned of the Minister’s foreshadowed application. The applicant indicated to the Court that he would rely upon his application as his only submission to the Court, although it is quite apparent that the pleadings have been acquired from other litigants whose circumstances are different.
I pay particular attention to the fourth reason raised in SZGMZ at paragraph [26] in respect of its conclusion that:
(T)he present application has been brought by the applicant for the predominant purpose in engaging in protracted litigation with the Minister for the collateral purpose of obtaining bridging visas whose entitlement depends upon the continuance of judicial review proceeding regardless of their merits.
I accept the submissions made by Mr Markus that this application has no reasonable cause of action and is frivolous and vexatious.
Mr Markus further submits that even if a reasonable cause of action was disclosed and the proceedings were not frivolous or vexatious, the proceedings should nonetheless be dismissed as an abuse of process of this Court. He relies on the authority of Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 392 to 393:
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 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…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 a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police 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.”
I accept the first respondent’s submission that the present proceedings are an abuse of process of the Court: SZGGS v Minister for Immigration [2005] FMCA 1071 per Driver FM at [10]. I also accept that it would be appropriate in the circumstances to direct that the registry not accept for filing any further application from the applicant seeking to challenge the decision of the Tribunal made on 27 October 2001 and handed down on 20 November 2001, or the decision of the delegate dated 15 January 2001, or any notification of either the Tribunal or the delegate decisions without prior leave of the Court: SZDCJ vMinister for Immigration& Multicultural & Indigenous Affairs [2004] FCA 1284 per Jacobson J at [15], [21] to [29]; SZGPU vMinister for Immigration [2005] FMCA 1388 per Smith FM at [16].
Conclusion
The first respondent’s interlocutory application should be upheld and the applicant’s application filed on 20 October 2005 should be dismissed.
I am satisfied the order for costs should be made in this matter on an indemnity basis. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 28 February 2006
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