SZBKV v Minister for Immigration

[2008] FMCA 408

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBKV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 408

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no arguable case – res judicata – proceedings vexatious and an abuse of the process of the Court – discretionary consideration when application made to prevent future litigation over refusal of refugee visa application.

Migration Act 1958, s.474
Federal Magistrates Act 1999, s.15
Federal Magistrates Court Rules 2001, rr.2.06 , 13.10, 13.11

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581
NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 975

Applicant: SZBKV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3291 of 2007

Judgment of: Cameron FM

Hearing date: 19 March 2008

Date of Last Submission: 19 March 2008

Delivered at: Sydney

Delivered on: 19 March 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to r.13.10 of the Rules of Court, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $2,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3291 of 2007

SZBKV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this case the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 18 November 2005 and handed down on 8 December 2005. The applicant had claimed that he feared persecution in India by reason of his support of a separate Sikh State of Khalistan. The Tribunal affirmed the decision of the Minister’s delegate to not grant him a protection visa. The matter is before the Court today on the applicant’s application that the respondents show cause why relief should not be granted to the applicant. 

Proceedings in this Court

1. In his application in these proceedings the applicant pleads three grounds which are, in reality, particulars of an overall allegation of jurisdictional error on the part of the Tribunal.

2. In his submissions today the applicant said that his life remained in danger in India and that everything for him had been destroyed in India. The applicant said that he wanted some more time in Australia but would return to India when it was safe to do so. 

3. The first respondent submits that the application lacks merit, but in any event, submits that the applicant:

   a)is estopped from bringing these proceedings;

   b)has no arguable case;

   c)has no reasonable prospects of success;

   d)has brought proceedings which are frivolous and vexatious; and

   e)has brought proceedings which are an abuse of the process of the Court. 

4. The first respondent also seeks an order that no further application by the applicant to review the decision of the delegate of the first respondent dated 26 August 2002, or the decision of the Tribunal handed down on 8 December 2005, be accepted for filing except with the leave of the Court. 

5. At a hearing to determine whether an order to show cause should be made, an order will not be made, and instead the proceedings will be dismissed, if the applicant does not have an arguable case against the respondents. Such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated, the claim is groundless or there is a high degree of certainty about the outcome.  Under r.13.10 of the Rules of Court, the proceedings may also be dismissed if they have no reasonable prospects of success, are frivolous or vexatious, or are an abuse of the process of the Court.

Background

1. The facts relevant to the proceedings today are set out in the affidavit of Nicola Johnson sworn 11 March 2008 and in the documents annexed to Ms Johnson’s affidavit, together with the amended application filed in this Court on 17 July 2006 which is Exhibit A in these proceedings. 

2. Emerging from those documents is this chronology:

   a)on 26 August 2002 the Minister’s delegate refused the applicant’s application for a protection visa;

   b)on 16 July 2003 the Tribunal as first constituted signed its decision, which it subsequently handed down on 13 August 2003, which affirmed the decision of the delegate;

   c)on 2 June 2005 Raphael FM dismissed the applicant’s application for judicial review of the Tribunal’s decision;

   d)on 20 September 2005 Edmonds J upheld the applicant’s appeal from the decision of Raphael FM and remitted the matter to the Tribunal for hearing again;

   e)on 18 November 2005 the Tribunal as constituted on the second occasion signed its decision, which it subsequently handed down on 8 December 2005, affirming the decision of the Minister’s delegate;

   f)on 7 August 2006 Scarlett FM dismissed the applicant’s application for judicial review of the second Tribunal decision;

   g)on 9 November 2006 Dowsett J dismissed the applicant’s appeal from the decision of Scarlett FM;

   h)on 3 October 2007 the applicant’s application for special leave to appeal to the High Court was dismissed; and

   i)on 24 October 2007 these proceedings were commenced.

3. In these proceedings the applicant is known by the pseudonym “SZBKV”. In Ms Johnson’s affidavit it is disclosed that this was the pseudonym by which the applicant was known in his original proceedings, heard by Raphael FM. In the proceedings which were brought for judicial review of the second Tribunal decision the applicant was identified by the pseudonym “SZIAK”. An inspection of the application filed on 4 January 2006 and the notice of appeal from the decision of Scarlett FM which was filed on 28 August 2006, those documents being respectively Annexure B and D to Ms Johnson’s affidavit, show that they are both signed by the applicant in these proceedings, as disclosed by a study of the application commencing these proceedings.

4. I am therefore satisfied that two pseudonyms have been used during the course of the applicant’s Court history relating to his protection visa application, and that he is in fact known not only as “Applicant SZBKV” but also as “Applicant SZIAK”.

Arguable case

1. The decision of the Tribunal is a decision to which s.474 of the Migration Act 1958 (“Act”) applies. As a privative clause decision, it may not be called in question, challenged, appealed against, reviewed, quashed, or be subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. However, in the case of Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, the High Court held that s.474 will not have the operation it purports to have if the decision of the Tribunal is affected by jurisdictional error.

2. Jurisdictional error was the basis of the application which the applicant brought in this Court on 3 January 2006 to set aside the decision of the Tribunal signed on 18 November 2005 and which was decided by Scarlett FM on 7 August 2006.  The subsequent appeal process flowed from that application’s lack of success. 

3. In these proceedings the applicant again seeks review of the Tribunal’s decision. Again, the only basis on which it can be set aside is that it is affected by jurisdictional error. The applicant’s application for judicial review based on jurisdictional error on the part of the Tribunal is certain to fail because it has already been determined. It cannot be re-litigated. 

4. This is an unusually clear case of an applicant seeking to re-agitate a matter which has been previously decided. There is no substantive difference between the allegations contained in the application in these proceedings and those in the amended application in the proceedings which were determined by Scarlett FM, which amended application is Exhibit A in these proceedings. Those claims have been decided on a final basis by Scarlett FM’s judgment. The applicant has unsuccessfully appealed Scarlett FM’s decision and has exhausted all his appeal rights in that connection.

5. In my view his claim is not arguable and an order to show cause will not be made. However, that is not the end of the matter because the first respondent raises issues arising out of r.13.10. Because the matter has already been decided, it is an abuse of the process of the Court to re-litigate it. It is also vexatious to impose such litigation on the respondents. In such circumstances, I am of the view that it is appropriate that the proceedings be dismissed pursuant to r.13.10. 

Future proceedings

1. Consequent upon such an outcome is the first respondent’s application that the applicant be prevented from bringing future proceedings based upon the decision of the Tribunal. Such an application is an unusual one to make, but appears to be a feature of migration litigation in this Court and in the Federal Court. 

2. The Court has inherent power in respect of proceedings which are already before it. Similarly, the Registrar of the Court has power pursuant to r.2.06 to refuse to accept a document for filing if the document appears on its face to be an abuse of process or is frivolous, scandalous or vexatious. Were the applicant to bring these proceedings again, in my view it would be open to the Registrar pursuant to that rule to refuse to accept such a document for filing. The Court also has power under r.13.11 to order that a person may not institute a proceeding without the leave of the Court if that person has been determined to be a vexatious litigant.

3. However, there is no provision in the Federal Magistrates Act 1999 or the Federal Magistrates Court Rules2001 which, in terms, provides the Court with power to make the order sought today by the first respondent. 

4. Notwithstanding this, Jacobsen J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581 held that by virtue of s.15 of the Federal Magistrates Act 1999, this Court does have power to make an order that no further applications to review a decision of the Tribunal be accepted for filing except with the leave of the Court. Following the decision of Graham J in NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 975, I consider I am bound by what Jacobsen J said in SZDCJ’s case.

5. As a consequence of that, I conclude that the Court does have the power to make the order which is sought. The question which now has to be addressed is in what circumstances should such an order be made.

6. The Rules of Court in relation to vexatious litigants and the cases which have considered such provisions, which are the standard in rules of court, give guidance as to the circumstances in which an order under r.13.11 might be made. However, a similar body of authority does not exist in relation to the application made today. In my view, if the Court is to exercise the power which Jacobsen J found the Court to have, it should do so in circumstances where vexatious proceedings have been brought on an issue already determined by the Court and there is reason to believe that future proceedings of a vexatious nature dealing with the same matter will be brought. Additionally, were those discretionary considerations to be satisfied, I conclude that the Court should not make an order which went beyond limiting an applicant from bringing similar vexatious proceedings in the future. That is to say, an applicant should be prevented from commencing proceedings without leave which do no more than re-agitate matters which have already been decided. 

7. Although the first of the two criteria I have identified has been satisfied, the applicant told the Court today that were he to be unsuccessful he would respect my decision and not bring this matter back to this Court. Given what the applicant has said, I cannot find that the second of the two identified criteria has been satisfied. As a result, the first respondent’s application for an order that no further application by the applicant to review the decision of the delegate be accepted for filing except with the leave of the Court will be refused.

Conclusion

1. To conclude, the application will be dismissed pursuant to r.13.10.

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

Associate:

Date: 11 April 2008