SZCEM v Minister for Immigration
[2007] FMCA 1233
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCEM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1233 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no reasonable prospects of success, abuse of process, frivolity and vexation. |
| Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth) |
| SZCEM v Minister for Immigration & Anor [2006] FMCA 102 SZCEM v Minister for Immigration [2006] FCA 536 SZCEM v Minister for Immigration & Anor [2006] HCATrans 696 SZCEM v Minister for Immigration & Anor [2007] FMCA 1009 |
| Applicant: | SZCEM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2159 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 30 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms B Anniwell Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed pursuant to s.17A of the Federal Magistrates Act 1999 (Cth) and rules 13.10(a), 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
The Court directs that no further application by this applicant to review any decision under the Migration Act 1958 (Cth) relating to his protection visa application made on 23 December 2002, any review of a decision relating to that protection visa application by the Refugee Review Tribunal or any notification of such decision be accepted for filing in this Court without the leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2159 of 2007
| SZCEM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 June 2007. The application was filed on 12 July 2007 and asserts actual notification of the Tribunal decision on 21 June 2007. On that basis I find that the application was filed within time.
The application asserts various jurisdictional errors by the Tribunal and is supported by an affidavit filed on the same day, also asserting jurisdictional errors and annexing a copy of the Tribunal decision. The Tribunal found that it did not have jurisdiction in the matter. That decision was based on the facts that the decision of the delegate had previously been reviewed by the Tribunal and the Tribunal’s decision had been upheld by this Court and on appeal by the Federal Court. The High Court had refused special leave to appeal.
Relevantly, the Tribunal decision states as follows[1]:
[1] Tribunal decision, page 2
According to the Tribunal’s records, the applicant applied to the then Department of Immigration and Multicultural Affairs (the Department) for a Protection visa on 23 December 2002. The delegate decided to refuse to grant the visa on 6 March 2003. The applicant sought review of the decision by application lodged with the Tribunal on 27 March 2003. The Tribunal, differently constituted, affirmed the delegate’s decision on 23 October 2003 (RRT Reference N03/46077). The applicant unsuccessfully sought judicial review of the Tribunal’s decision: see SZCEM v MIMIA & Anor [2006] FMCA 102 (31/01/2006), SZCEM v MIMIA [2006] FCA 536 (10/05/2006) and SZCEM v MIMIA & Anor [2006] HCATrans 696 (14/12/2006). On 22 December 2006 the applicant lodged a further application for review of the Tribunal’s decision of 23 October 2003, which Nicholls FM dismissed on 21 May 2007, with an order that the applicant not be allowed to file any further application related to the Tribunal’s decision without leave of the Court (FMCA Reference SYG3877/2006).
The applicant lodged a further application for review of the delegate’s decision on 4 June 2007.
The Tribunal found, undoubtedly correctly, that it had no jurisdiction having validly discharged its statutory function. Relevant authorities establishing this point were referred to.
The Minister responded to the application on 27 July 2007. The applicant confirmed this morning that he had received that response and I arranged for the interpreter, who attended this morning to assist the applicant in the Tamil language, to read the response to him before I came on the bench. I incorporate terms of the response in this judgment:
1.The application is frivolous and/or vexatious, and it amounts to an abuse of the process of the Court:
a)The applicant arrived in Australia on 24 November 2002. On 23 December 2002 he lodged an application for a protection visa.
b)That application was refused by a delegate of the Minister on 6 March 2003 (“the delegate’s decision”).
c)On 27 March 2003, the applicant sought review of the delegate’s decision in the Refugee Review Tribunal (“the RRT”). On 23 October 2003, handed down on 18 November 2003, the RRT affirmed the delegate’s decision (“the first RRT decision”).
d)The applicant has since sought judicial review of the first RRT decision and the delegate’s decision in numerous proceedings, all of which were unsuccessful:
Particulars
i) In the Federal Magistrates Court proceedings number SYG2757 of 2003, being an application for review of the decision of the first RRT decision dismissed by Driver FM on 31 January 2006: SZCEM v Minister for Immigration [2006] FMCA 102;
ii) In the Federal Court of Australia proceedings number NSD248 of 2006, being an appeal from the judgment of Driver FM, dismissed by French J on 10 May 2006: SZCEM v Minister for Immigration [2006] FCA 536.
iii) In the High Court of Australia proceedings number S170 of 2006, being an application for special leave to appeal the decision of French J, dismissed by Hayne and Crennan JJ on 14 December 2006: SZCEM v Minister for Immigration [2006] HCATrans 696.
iv) In the Federal Magistrates Court proceedings number SYG3877 of 2006, being an application for review of the first RRT decision dismissed by Nicholls FM on 21 May 2007: SZCEM v Minister for Immigration [2007] FMCA 1009.
d)The applicant subsequently purported to make an application to the RRT for review of the delegate’s decision, which was already the subject of review by the RRT in the first RRT decision.
e)On 19 June 2007, the RRT decided that it did not have jurisdiction in relation to the applicant’s application (“the second RRT decision”).
f)The second RRT decision is the subject of the present application.
2.The application has not raised an arguable case for the relief claimed [Rule 44.12(1)(a)].
In brief, the Minister seeks dismissal of the application summarily, either under rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) or pursuant to rule 44.12(1)(a) of those Rules.
The Minister’s response is supported by the affidavit of
Angela Margaret Nanson, filed in Court by leave today. The affidavit annexes the various Court decisions relating to this case.
There have now been a significant number of applications to the Tribunal seeking a second review of a delegate’s decision. As this Court and the Federal Court have repeatedly stated, once a tribunal has validly exercised its statutory function under the Migration Act 1958 (Cth) (“the Migration Act”) it is functus officio. It cannot perform its function again. It is difficult to avoid the conclusion that notwithstanding this obvious legal point, applicants are adopting the practice of applying to the Tribunal a second time when all other apparent avenues have been closed off. Such an application to the Tribunal, as I have said several times before, is an abuse of the Tribunal’s process. The application before this Court is a patent abuse of this Court’s process. Further, the application is doomed to fail. It has no possibility of success whatsoever.
In SZCEM v Minister for Immigration[2] at [7] I said:
No other possible assertion of jurisdictional error is apparent from my own reading of the RRT decision and the book of relevant documents. I find that the RRT decision is free from jurisdictional error and is therefore as privative clause decision.
[2][2006] FMCA 102
My decision was upheld on appeal in the Federal Court and the High Court refused special leave to appeal on that decision. It is plain from the judicial history that the first Tribunal decision was validly made and is a privative clause decision. The tribunal was obviously correct in finding that it had no jurisdiction to review the delegate’s decision a second time. For those reasons the application should be dismissed summarily pursuant to s.17A of the Federal Magistrates Act 1999 (Cth) and rule 13.10(a) of the Federal Magistrates Court Rules. I so order.
As I have already noted, the proceeding is also an abuse of the process of this Court and should also be summarily dismissed for that reason pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.
The finding of an abuse of process also supports an award of costs on an indemnity basis. There is no evidence or other material before me as to what the Minister’s actual costs are. In the circumstances, I will apply the Federal Magistrates Court scale.
I order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
Further, I accept the Minister’s response that the application before the Court is frivolous and vexatious. That calls not only for a dismissal order pursuant to rule 13.10(b) of the Federal Magistrates Court Rules; it also calls for a more stringent order than that previously made by Nicholls FM to prevent further such applications coming before the Court except by leave.
I will order that no further application by this applicant to review any decision under the Migration Act relating to his application for a protection visa made on 23 December 2002, any review of a decision relating to that protection visa application by the Refugee Review Tribunal or any notification of such decision is to be accepted for filing in this Court except by leave of a Federal Magistrate.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 August 2007
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