SZBPS v Minister for Immigration - [2005] FMCA 1798

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1798

MIGRATION – RRT decision – previous judicial review applications – fresh application dismissed as abuse of process.

Federal Magistrates Court Rules 2001, rr.13.03A(d), 13.10, 13.10(c)
Migration Act 1958 (Cth), s.426A(1)

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119

SZBPS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 718
SZBPS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 435
SZBPS v Minister for Immigration [2005] FMCA 23
Williams v Spautz (1992) 174 CLR 509

Applicant:

SZBPS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2852 of 2005

Judgment of:

Smith FM

Hearing date:

24 November 2005

Delivered at:

Sydney

Delivered on:

24 November 2005

REPRESENTATION

Counsel for the Applicant:

No appearance by or on behalf of the applicant

Counsel for the First Respondent:

Ms S Burnett

Solicitors for the Respondents:

Clayton Utz

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 first respondent’s costs on an indemnity basis in the sum of $3,765.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 17 September 2003 reference N02/45420 or for review of the decision of the delegate of the first respondent dated 6 December 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

SYG2852 of 2005

SZBPS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application filed by the Minister, who is the first respondent in this proceeding, seeking the summary dismissal of the principal application under rule 13.10 of the Federal Magistrates Court Rules 2001 on the basis that no reasonable basis for the application is disclosed, or that it is frivolous or vexatious, or is an abuse of the process of the Court. I propose to deal with it on the latter basis, and to consider both the significance of the history of litigation conducted by the applicant and also whether his present application as filed is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [61]).
I shall consider the applicant’s history of litigation before addressing the merits of his current application. Before doing so I should note that the applicant has not appeared today, however, I am satisfied that he is on notice of today’s listing, and that he is aware that the Minister’s application could proceed to be dealt with today even if he were absent. I told this to him at the first court date on 9 November 2005, when he appeared and had the assistance of an interpreter. I am satisfied that he has been given sufficient notice of the Minister’s evidence and arguments to be able to attend today and present an argument if he wished to.
The applicant has not communicated to the Court at all to explain his absence, but yesterday the solicitor for the Minister received a letter saying:
I would like to urge you to consider my case favourably and give me more 4 weeks time to submit my written submission to be prepared by the help of my lawyer. I will also not be able to attend the hearing on 24 Nov.’05 due to my sickness.
A person he referred to as his lawyer is a person that the Court knows not to be a holder of a practising certificate. Plainly, the request for an adjournment was not properly made to the Court. The claim of sickness is not corroborated and I am not prepared to give it substance, particularly in view of the applicant’s litigation history which I shall recount below. In all the circumstances, I refused to adjourn the present proceeding, and proceeded in the absence of the applicant pursuant to rule 13.03A(d).
The applicant’s litigation has concerned his entitlements to a protection visa. He arrived in Australia on 7 October 2002 and is a national of Bangladesh. On 18 October 2002 he applied for a protection visa. A delegate refused his application on 6 December 2002, and the applicant appealed to the Refugee Review Tribunal (“the Tribunal”) which affirmed the delegate’s decision on 17 September 2003.
The Tribunal noted that the applicant was advised that the Tribunal had looked at the material before it but was unable to make a decision on that information alone, and that he had been invited to a hearing to give evidence. The applicant did not attend that hearing and no explanation was received by the Tribunal, so it proceeded to make a decision. It said that it was not satisfied that he had a genuine fear of persecution nor that his claims were true.
The applicant sought judicial review in this Court on 10 October 2003. The grounds of his application were a list of general assertions which might have been capable of identifying jurisdictional errors if they had contained particulars giving them substance and relevance to the matter. However, no such particulars were provided. I note in passing that the applicant’s present application is in identical terms, apart from two of its paragraphs, which reveal a similar lack of substance.
The Minister moved the Court for the interlocutory dismissal of the application on the basis that it disclosed no reasonable cause of action. The interlocutory application was considered by Driver FM on 17 January 2005 and his Honour dismissed the principal application (see SZBPS v Minister for Immigration [2005] FMCA 23). The applicant appeared and presented a written outline of submissions in which he claimed that he had not attended the Tribunal hearing because he was sick. However, he did not present evidence of his illness to the Court and conceded that he had not informed the Tribunal “regarding my sickness”.
Driver FM considered the merits of the applicant’s application for judicial review, and concluded that it was not procedurally unfair for the Tribunal to have proceeded in the absence of the applicant, and that this was permitted by s.426A(1) of the Migration Act 1958 (Cth). His Honour also said:
[8]There is nothing in the judicial review application pointing to any jurisdictional error. Neither on my own reading of the court book is any jurisdictional error apparent. The matters dealt with at the hearing this afternoon confirm that the judicial review application is doomed to fail.
His Honour dismissed the applicant’s application on the ground that it disclosed no reasonable cause of action.
The applicant applied for leave to appeal to the Federal Court and for an extension of time. On 23 March 2005, Moore J considered the matter. The applicant did not appear, but his Honour noted that the applicant was aware of the hearing, since the Court had received a facsimile from the applicant which claimed that he was not well and was physically unable to appear, and which sought an adjournment for two weeks. His Honour, however, refused the adjournment and said:
[4]there is nothing in the material to suggest there was any error on the part of the Federal Magistrate in dismissing the application and, indeed, the draft notice of appeal raises no points of substance about either the approach adopted by the Federal Magistrate or the approach adopted by the Tribunal.
His Honour dismissed the application with costs (see SZBPS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 435).
The applicant applied for special leave to appeal to the High Court, adopting forms showing no relevance to the particular matter. On 8 September 2005, Hayne J announced the Court’s reasons for refusing special leave. He referred to the common form documents used by this applicant and 28 other applicants which were disposed of at the same time, and said:
Common form documents, used in this way, do not advance any useful argument on behalf of an applicant for special leave.
His Honour said that this applicant’s application did not enjoy any prospect of success and dismissed the application (see SZBPS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 718).
Within a month of that order the applicant filed his present application. As I have indicated, it essentially duplicates the application which had previously been brought in this Court. It shows no attempt to identify any fresh argument nor, indeed, any argument having relevance to the particular decision of the Tribunal. The inference that I would draw from the history of the matter which I have recounted is that the applicant is using court processes predominantly to protract his stay in Australia, by qualifying for bridging visas whose eligibility arises by reason of the existence of court applications regardless of their merits.
In my opinion, the history of the matter which I have recounted above reveals an abuse of process, both through the repeated bringing of unmeritorious applications and also the collateral purpose which I have found above (see Williams v Spautz (1992) 174 CLR 509 at 520‑522 and 526‑529). I also consider it is an abuse of process since in the form presented to the Court, the application is, as was previously held by Driver FM, plainly hopeless.
For these reasons I propose to make the orders sought in the Minister’s interlocutory application, including directions to this Court’s Registry designed to prevent the receipt of further applications concerning administrative decisions on the applicant’s protection visa application without the prior leave of the Court. I also consider that it is appropriate to award costs on an indemnity basis.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 8 December 2005