SZCCX v Minister for Immigration
[2007] FMCA 1655
•20 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCCX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1655 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – res judicata – issue estoppel – arguable case – proceedings frivolous, vexatious and an abuse of process. |
| Migration Act 1958, ss 424A, 474, 477 Federal Magistrates Court Rules 2001, r. 13.10, Sch. 1 |
| Minister for Immigration v SZKKC [2007] FCAFC 105 |
| First Applicant: | SZCCX |
Second Applicant: SZCCY
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1822 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 August 2007 |
| Date of Last Submission: | 20 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Pursuant to r.13.10 of the Rules of Court the application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $2500.
The first respondent’s application for an order that no further application by the applicants to review the decision of the delegate of the first respondent dated 22 April 2003, or the decision of the Tribunal handed down on 18 November 2003, be accepted for filing except with leave of the Court, be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1822 of 2007
| SZCCX |
First Applicant
SZCCY
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants seek review of a decision of the Refugee Review Tribunal, which is expressed in the application filed on 8 June 2007 to be dated 22 October 2003. In annexure A to the affidavit of Rowan White sworn 19 July 2007, the Tribunal’s decision is described as having been handed down on 18 November 2003.
In court today it is only the first applicant who has appeared, and he represents his wife. For the sake of convenience, in these reasons the first applicant will be described as the applicant.
In his application the applicant raises the following grounds:
1. The decision is not a decision within the meaning of the Migration Act 1958.
2. The decision does not bar the applicant under s.48B of the Migration Act 1958.
3. The decision of the Tribunal now falls under the application of SZEEU and SAAP.
The first respondent submits that the applicant is estopped from bringing the proceedings, has no arguable case, has no reasonable prospects of succeeding in the proceedings, has brought proceedings which are frivolous or vexatious and has brought proceedings which are an abuse of process.
In his response and in his written submissions, the first respondent originally asserted that these proceedings had been brought out of time. However, following the decision of the Full Court of the Federal Court in Minister for Immigration v SZKKC [2007] FCAFC 105, that issue is no longer pressed. Similarly, the Minister no longer invites the Court to exercise its discretion to hold that the proceedings have been commenced following a long delay. That is to say, the first and the third grounds raised in the first respondent’s response are no longer pressed.
After the Minister’s initial written submissions were filed, the applicant filed his own lengthy written submissions. Those submissions raised the following issues. First, that s.477 of the Migration Act is constitutionally invalid. Secondly, that the principles of jus gentium and jus cogens apply. Thirdly, the submission sets out factual matters associated with the Tribunal process. Fourthly, the submissions raise an asserted breach by the Tribunal of its obligations under s.424A of the Act. Fifthly, they assert that “The matter was not dealt with properly before” and should be dealt with again. Sixthly, the applicant submits that the matter should be removed into the High Court.
The first and the last matters raised by the applicant in his written submissions no longer arise for consideration because the first respondent no longer presses the issue of whether the proceedings were brought out of time. The remaining submissions and the grounds raised in the application do not address the principal issue before the Court. That issue is whether the applicant’s cause of action is merged in the original judgment of this Court, which is referred to later in these reasons and was upheld on appeal, and secondly whether the applicant is stopped from raising the issues which he now seeks to raise.
The matter is before the Court today on the applicant’s application that the respondent show cause why relief should not be granted to the applicant. An order that the respondents show cause will not be made if the applicant does not have an arguable case. The authorities show that an application should not be dismissed on the basis that there is no arguable case unless the lack of a cause of action is clearly demonstrated, or the claim is clearly groundless, or there is a high degree of certainty about the outcome. In any event, the proceedings may yet be dismissed on the basis that they have no reasonable prospects of success, are frivolous or vexatious, or are an abuse of process.
In considering whether the applicant has an arguable case and whether these proceedings are frivolous, vexatious or an abuse of process, consideration needs to be given to the chronology of events associated with the applicant’s application for a protection visa. That chronology is to be found annexed to the affidavit of Mr White and in the orders and reasons for judgment which are also annexed to that affidavit.
The chronology is relevantly as follows. On 22 April 2003 the delegate made his or her decision. On 18 November 2003 the Tribunal handed down its decision. On 6 April 2006 Barnes FM in this Court dismissed the applicant’s application for review of the Tribunal’s decision. On 1 August 2006 Conti J in the Federal Court dismissed an appeal from Barnes FM’s decision. On 23 May 2007 the High Court dismissed the applicant’s application for special leave to appeal from the decision of Conti J. Very shortly afterwards, on 8 June 2007, these proceedings were commenced.
Although the decision of the Tribunal is not before the Court, it can be understood to be a decision to which s.474 of the Act applies. That is to say, it is classified by the Act as a privative clause decision. S.474(1) of the Act provides:
A privative clause decision:
(a) is final and conclusive;
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court;
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
However, the High Court has held that s.474 will not have the effect it purports to have if the Tribunal’s decision is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In the decision of Barnes FM of 6 April 2006, which is annexure B to Mr White’s affidavit, her Honour considered the applicant’s application to set aside the Tribunal’s decision in the context that the issue the applicant was raising was that the Tribunal’s decision was affected by jurisdictional error. Barnes FM concluded that the Tribunal’s decision was not affected by jurisdictional error. It was those proceedings which were the foundation of the subsequent appeal process in which the applicant was unsuccessful.
In these proceedings the only basis upon which the applicant can obtain an order that the Tribunal’s decision be set aside would be that it was affected by jurisdictional error. That is to say, his only real potential cause of action in these proceedings is the one which was decided by Barnes FM in 2006. It is clear that the applicant’s action is certain to fail because his claim for judicial review on the basis of jurisdictional error has already been determined and cannot be re-litigated. This is not withstanding that the way it is presented in these proceedings may be different from the way it was presented to Barnes FM. As Merkel J said in Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677 at 692 [65]:
Accordingly, for the above reasons there is a commonality of the causes of action on the basis of each of the various tests discussed above. The substratum of facts giving rise to the right of review are [sic] exactly the same. The factual circumstances relied upon to establish the right to relief are the same. The substance of the two proceedings is the same. The right to relief in each case is informed by the same substantive law principles. It is not contended that the parties to the two sets of proceedings differ in any material respect. Thus, the dismissal orders finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the Convention in the present case.
Additionally, the applicant is estopped from raising any claims which were, or could have been, raised previously before Barnes FM and which were, or could have been decided, in the previous proceedings: Blair v Curran (1939) 62 CLR 464; Port of Melbourne Authority v Anshun (1981) 147 CLR 589. Moreover, no special circumstances have been made out which would suggest that Anshun estoppel should not apply to any matters which the applicant failed to raise in the previous proceedings.
I am therefore of the view that the applicant’s claim is not arguable. However, that does not dispose of the matter because the Minister has also raised the issue of whether the proceedings are vexatious or frivolous and whether they are an abuse of the process of the Court. In my view they clearly are frivolous, vexatious and an abuse of the process of the Court because the applicant has previously had his claim determined by this Court, the Federal Court and special leave to appeal to the High Court was refused, and there is no proper basis upon which the matter could have been re-agitated here today. Consequently the application will be dismissed pursuant to r.13.10 of the Rules of Court.
The applicant has been unsuccessful in these proceedings and the Minister sought an order for his costs. Nothing in the conduct of these proceedings suggests that the Minister should not be awarded his costs; indeed, quite the contrary. Consequently the Minister will be awarded his costs.
The Minister has sought an order for costs on an indemnity basis and presses that application on the basis of the finding that this application was frivolous, vexatious and an abuse of the process of the Court. In Colgate Palmolive v Cussons (1993) 46 FCR 225 at 232-234 Sheppard J discusses the principles which are to be kept in mind when considering such applications. Amongst the various examples which his Honour gives are cases of particular misconduct that causes loss of time to the Court and to other parties, proceedings that were commenced or continued for some ulterior motive, or which saw the making of allegations which ought never to have been made, or the undue prolongation of a case by groundless contentions. In his discussion his Honour does not expressly refer to circumstances involving a litigant in person, and undoubtedly most, if not all, of the cases to which his Honour refers involved litigants who had the assistance of legal advisers. It was also apparent that some of the examples cited by his Honour involved findings of fact arising out of the evidence and the running of the cases to which his Honour refers.
A finding that a proceeding is frivolous, vexatious or an abuse of process is an objective one and does not require conclusions as to the subjective state of mind of the litigant in question. There has been no oral evidence in this case, and indeed no evidence at all adduced on behalf of the applicants. Although I have concerns about the bona fides of the applicants in the bringing of these proceedings, there is no evidence before me on which I can make a finding that they knew the proceedings were frivolous, vexatious and an abuse of process. Because of this I am not willing to exercise my discretion to award costs on an indemnity basis.
The Minister’s application for indemnity costs having been refused, he has now sought the amount of $2500 which is the amount provided in para.1(b) of pt.2 of sch.1 to the Rules. Given that Mr White has advised me that the Minister’s solicitor and client costs exceed $4000, and absent any cogent submissions by the applicant to the contrary, I am satisfied that that is a reasonable amount to award and that will be the amount of costs awarded to the Minister.
The Minister has sought a further order that the applicant be prevented from bringing further applications to review the underlying decisions of the delegate of the Tribunal without leave of the Court. I am uncertain that the Court has power to make such an order, given that the High Court held in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 that the only power it had to prevent the commencement of vexatious proceedings was what was provided to it by statute and by its rules. Although reference has been made to a decision of the Full Court of the Federal Court today, a copy of that decision is not before the Court and in the circumstances I must be guided by my understanding of what the High Court has said in Inglis’s case. Consequently, the Minister’s application will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 8 October 2007
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