SZCLL v Minister for Immigration
[2007] FMCA 1394
•15 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCLL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1394 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal. Res judicata – issue estoppel – Anshun estoppel – proceedings an abuse of process. |
| Migration Act 1958, s.474 Federal Magistrates Court Rules 2001, rr.13.10, 13.11, 44.12 |
| Minister for Immigration v SZKKC [2007] FCAFC 105 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Blair v Curran (1939) 62 CLR 464 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 |
| First Applicant: | SZCLL |
| Second Applicant: | SZCLM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1860 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 August 2007 |
| Date of Last Submission: | 15 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
Pursuant to r.13.10(c) the proceedings be dismissed.
The first respondent's application for orders pursuant to r.13.11(3) be dismissed.
The applicants pay the first respondent's costs fixed in the amount of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1860 of 2007
| SZCLL |
First Applicant
| SZCLM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 14 June 2007 the applicants seek judicial review of the decision of the Refugee Review Tribunal which their application expresses to have been dated 21 November 2003. A copy of the decision for the Tribunal is found commencing at p.10 of exhibit “A” where it is expressed to have been made on 21 November 2003 and handed down on 16 December 2003.
These proceedings are brought by two applicants but it is only the male applicant who appears today. The applicants’ claims rise and fall together and for convenience the male applicant will be referred to in these reasons as the applicant.
The application sets out the grounds upon which the applicant claims that the Tribunal's decision should be set aside on the basis that that decision is affected by jurisdictional error. In his written submissions filed in the Court the applicant has also submitted that his circumstances have changed.
In his response the first respondent asserts, first, that the application to this Court was brought out of time; secondly, that the applicant is barred by reason of the doctrine of res judicata; thirdly, that the applicant is estopped from bringing the application; and, fourthly, that the proceedings are an abuse of process.
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. An order to 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 under r.44.12 of the Rules of Court unless 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. The proceedings may also be dismissed pursuant to r.13.10 of the Rules of Court if no reasonable cause of action is disclosed, if the proceeding is frivolous or vexatious or otherwise an abuse of process.
In considering whether the applicant has an arguable case, it is worth considering the history associated with the applicant's application for a protection visa. The chronological details which appear below are derived from exhibit “A”:
a)the decision of the delegate was dated 26 June 2003;
b)the decision of the Tribunal confirming the decision of the delegate to refuse the applicant a protection visa was made on 21 November 2003 and handed down on 16 December 2003;
c)the applicant sought judicial review in this Court and on 29 September 2005 Scarlett FM dismissed the applicant's application;
d)on 3 July 2006 the Full Court of the Federal Court dismissed the applicant's appeal from the decision of Scarlett FM;
e)on 22 May 2007 the High Court dismissed the applicant's application for special leave to appeal from the decision of the Full Court of the Federal Court; and
f)on 14 June 2007 these proceedings were commenced.
The respondent's response was filed prior to the decision of the Full Court of the Federal Court in Minister for Immigration v SZKKC [2007] FCAFC 105 and as a result the Minister no longer presses the defence that the proceedings were brought out of time.
Turning to the remaining issues in the proceedings, it should be kept in mind that the decision of the Tribunal is one to which s.474 of the Act applies and that ostensibly it is a privative clause decision. Section 474 provides that privative clause decisions must not be challenged, appealed against, reviewed, quashed or called in question in any Court and are not subject to prohibition, mandamus, injunction, declaration or certiorari. However, the High Court has held that s.474 will not have the operation it purports to have if the decision of the Tribunal is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. That is to say jurisdictional error is the only basis upon which the Tribunal's decision may be set aside. Jurisdictional error was the basis upon which the decisions of Scarlett FM and the Full Court of the Federal Court and the High Court were made.
In these proceedings the applicant again seeks review of the Tribunal's decision. In his application the only basis raised is one founded on jurisdictional error. The applicant's submissions that his circumstances have changed cannot be the basis upon which the Tribunal's decision may be set aside. Logically that must be so as judicial review proceedings are simply to review whether the Tribunal observed proper procedure and the law when conducting its review and formulating and expressing its reasons. Events subsequent to the Tribunal's decision cannot be the basis for a decision of this Court to set aside the Tribunal's decision.
What the applicant seeks to do in these proceedings is essentially what he sought to do in the previous proceedings. That is, to set aside the Tribunal's decision by reason of jurisdictional error. That application has already been decided. Further, the applicant is estopped from raising any claims which were or could have been raised in the previous proceedings and which were or could have been decided in those previous proceedings: Blair v Curran (1939) 62 CLR 464; Port of Melbourne Authority v Anshun (1981) 147 CLR 589. Consequently the applicant does not have an arguable case requiring the respondents be called upon to show cause why relief should not be granted to him.
Whilst it would be open to the Court to dismiss the proceedings pursuant to r.44.12 of the Rules of Court, in the circumstances of this case where the applicant has brought a second set of proceedings having already been unsuccessful in this Court, the Full Court of the Federal Court and the High Court, these proceedings must necessarily be considered to be an abuse of the process of the Court. For this reason I propose to dismiss the proceedings pursuant to r.13.10(c).
The Minister, in addition to his defence of the applicant's application has sought orders that the applicants not be permitted to institute any further proceedings in this Court seeking to deal with the decision made by the Tribunal on 21 November 2003 and handed down on 16 December 2003, without first obtaining the leave of this Court pursuant to r.13.11(3)(b) of the Rules of Court. Putting aside any consideration of whether that matter was properly raised for the first time in written submissions rather than by way of an application under r.13.11(4), the question arises whether the Court has power to make such an order. The relevant rule provides:
If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:
(a) ...
(b)that the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court. (r.13.11(3)).
That sub-rule raises at least two issues. The first is whether the applicant has habitually and persistently and without reasonable grounds instituted vexatious proceedings against the Minister and, secondly, whether the Court has power to make an order in the terms sought by the Minister. The second question need not be answered because I am of the view that the application fails on the first issue. The current proceedings may be described as vexatious but it could not be said that the previous proceedings brought by the applicant were vexatious. He was entitled to bring an application to the Court to seek review of the Tribunal's decision and to pursue his appeal rights from the point. To do so does not indicate habitual and persistent institution of vexatious proceedings. Neither does the mere commencement of these proceedings, notwithstanding the fact that in my view they are indeed vexatious. A course of conduct is required and that has not occurred to this point. Consequently the first respondent's application for an order pursuant to r.13.11 will be dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 9 October 2007
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