SZCBH v Minister for Immigration - [2006] FMCA 336

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCBH & ANOR v MINISTER FOR IMMIGRATION

[2006] FMCA 336

MIGRATION – Delegate’s decision – previous merits and judicial review – application dismissed as abuse of process.

Federal Court Rules, O.54
Federal Magistrates Court Rules 2001, rr.13.03(2)(b), 13.10, 13.10(c)

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
SZCBH & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 907
SZCBH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 730
SZCBH & Anor v Minister for Immigration [2005] FMCA 329
SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844
SZGMZ v Minister for Immigration [2005] FMCA 1549

First Applicant:

SZCBH

Second Applicant:

SZCBI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number:

SYG3513 of 2005

Judgment of:

Smith FM

Hearing date:

28 February 2006

Delivered at:

Sydney

Delivered on:

28 February 2006

REPRESENTATION

Counsel for the Applicants:

First applicant in person

Counsel for the Respondent:

Mr I Muthalib

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicants must pay the respondent’s costs on an indemnity basis in the sum of $3,000.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 18 November 2003 reference N03/46317 or for review of the decision of the delegate of the respondent dated 17 April 2003 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

SYG3513 of 2005

SZCBH

First Applicant

SZCBI

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

In this proceeding, an application was accepted for filing by facsimile, which used parts of the form applicable under O.54 of the Federal Court Rules. It is a document which appears to reproduce the first and last pages of a three‑page precedent which I have addressed in numerous previous cases, which seek orders by way of judicial review of a decision of a delegate to refuse to grant a protection visa to the applicant upon the ground that the decision is invalidated by defects in its notification letter.
The first page of the document indicates such a decision which is sought to be reviewed, that being a decision made by a delegate on 17 April 2003 refusing the applicants’ applications for protection visas. However, it is missing the middle page which should indicate the orders sought and the grounds upon which entitlement to that relief is claimed.
The applicant husband, when shown the document today, said that it was complete, and that he had sent it by facsimile. He was unable to tell me whether there was a page missing, nor what orders he sought and on what grounds. In my opinion, the application is plainly incompetent on formal grounds, and should not have been accepted by the Registry.
The Minister has sought the summary dismissal of the application under r.13.10 of the Federal Magistrates Court Rules 2001, including on the basis that it is an abuse of process. I propose to deal with it on that basis, and to make the assumption that the applicants intended to set out grounds of review in relation to the delegate’s decision and to seek orders which give relief arising from its invalidity. I shall assume that the person who sent the fax to the Court mistakenly failed to send the middle page from the precedent adopted by the applicants.
The Minister’s application is made on two bases, firstly that an abuse of process appears by reason of a history of litigation, and secondly on the basis that even assuming it had good grounds going to the validity of the delegate’s decision, the prospects of obtaining relief by way of judicial review are hopeless. There is good authority that an application can be characterised as an abuse of process if it is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [61]).
The applicants’ history of litigation in relation to this decision of the delegate is as follows.
It is clear that the applicants did receive notice of the decision, since they exercised their right of merits appeal to the Refugee Review Tribunal (“the Tribunal”) within the mandatory time. In a decision handed down by the Tribunal on 18 November 2003, the Tribunal said that it invited the applicants to attend a hearing to give evidence, but:
On 14 October 2003 the Tribunal was advised in writing that the applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it.
The Tribunal took that approach, considered their claims and their visa application, and was not satisfied on the evidence before it that the applicants had a well‑founded fear of persecution within the meaning of the Convention.
The applicants then applied to this Court for judicial review of the Tribunal’s decision. Their application was dismissed by Nicholls FM on 18 January 2005 (see SZCBH & Anor v Minister for Immigration [2005] FMCA 329). His Honour dismissed the application on the grounds that they had failed to comply with directions requiring them to file an amended application giving particulars of any grounds of review. His Honour said: “the applicants have elected to do essentially nothing to pursue their application for the past thirteen months”, and thought it appropriate to dismiss the application pursuant to r.13.03(2)(b) of the Federal Magistrates Court Rules 2001.
The applicants sought leave to appeal to the Federal Court but this was refused by Conti J on 13 May 2005 (see SZCBH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 730). The applicants were unable to show his Honour any merit in their application for judicial review or grounds for appeal from Nicholls FM.
The applicants then applied for special leave to appeal to the High Court of Australia, adopting pro forma documents with no bearing on their case. On 9 November 2005, Gummow and Kirby JJ refused the application (see SZCBH & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 907). It is clear from the reasons given by Gummow J that their Honours addressed the merits of any challenge by way of judicial review to the Tribunal’s decision. He said:
The applicants’ application for special leave to appeal and their written case are pro forma documents which raise no grounds for the grant of special leave. We have considered the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court and are unable to discern any jurisdictional error. There would be no prospect of success in any appeal to this Court from the Federal Court.
As I have indicated, within a short time of failing in the High Court the applicants have been permitted to commence their present application. If, as appears to me, they intended to include page 2 of the common form document used by applicants in their situation, it can be characterised as hopeless for the reasons which I gave in SZGMZ v Minister for Immigration [2005] FMCA 1549. My decision was upheld by Wilcox J in SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844.
In a similar case where a delegate’s decision was the subject of an application brought after unsuccessful merits and judicial review proceedings in relation to the Tribunal (see SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821), Wilcox J said at [8]:
The appeal would enjoy no prospect of success because it is obvious that the delegate’s decision is now of no significance, having regard to the fact that the delegate’s decision was reviewed by the Tribunal. There would be no possibility of any court, in the exercise of its discretion, intervening to set aside the delegate’s decision.
The applicant husband was given notice of the Minister’s proposed motion for summary dismissal when he attended a first court date on 17 January 2006. A return date for that motion was then allotted, and this was adjourned after the applicant presented a medical certificate indicating that he was unable to travel from his Victorian home due to a temporary condition which was not identified by his doctor. I am satisfied that he has been served with the documents in support of the Minister’s application in time to consider his position and prepare arguments for today.
The first applicant appeared today and spoke on behalf of himself and his wife. He showed no appreciation of the nature of the proceeding which he had brought in this Court and, as I have indicated, showed incomprehension when I sought to discover the grounds for bringing the application and the orders sought. His submission was that he wanted more time to get evidence to present to the Refugee Review Tribunal because his concern about his situation in India was continuing. However, that does not provide any acceptable justification for the present proceeding, nor reveal any prospects of success if I allowed it continue.
In all the circumstances I have described above, I consider the present proceeding is clearly an abuse of process and that it should be dismissed under r.13.10(c). I consider that it justifies a direction to the Registry not to allow, without prior leave from the Court, the further filing of applications for judicial review of administrative actions in relation to the applicants’ protection visa applications. It also justifies a costs order on an indemnity basis.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 March 2006