SZCOT v Minister for Immigration
[2006] FMCA 1082
•11 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1082 |
| MIGRATION – Refugee – Tribunal found it had no jurisdiction to review the delegate’s decision – extensive litigation history – no reviewable error – abuse of the process of the Court – application dismissed. |
| Migration Act 1958 Federal Magistrate Court Rules 2001, rr.13.10(a) 13.10(c) |
| NALB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 614 Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906 SZGMZ vMinister for Immigration [2005] FMCA 1549 SZESD v Minister for Immigration & Anor [2006] FMCA 459 SZHWA & Ors v Minister for Immigration & Anor [2006] FMCA 451 |
| Applicant: | SZCOT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 679 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 11 July 2006 |
| Date of Last Submission: | 27 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms. Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant not file, without leave of the Court, any further application in relation to the Refugee Review Tribunal decision of
15 February 2006, the Refugee Review Tribunal decision of 20 January 2003 and the earlier decision of a delegate of the first respondent made on 15 May 2001 to which the subsequent Tribunal decisions relate.
The applicant pay the first respondent’s costs on an indemnity basis set in the amount of $2800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 679 of 2006
| SZCOT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore: Revised)
I have before me an application filed in this Court on 6 March 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 February 2006. The Tribunal found it did not have jurisdiction to review the decision of a delegate of the respondent Minister made on 15 May 2001 to refuse a protection visa to the applicant.
I also have before me for the respondent a response, filed on 29 March 2006, seeking summary dismissal of the application pursuant to rule 13.10(a) of the Federal Magistrate Court Rules 2001 (“the Rules”) on the basis that there is no reasonable prospect of success in prosecuting the proceedings, or pursuant to rule 13.10(c) of the Rules, on the basis that the proceedings are an abuse of the Court’s process.
I also have before me, in support of the respondent’s Notice of Motion, the affidavit of Nicola Johnson, a solicitor in the employ of the respondent’s solicitors, sworn 29 March 2006, which was admitted into evidence before me today. Annexure “A” to the affidavit of Nicola Johnson reveals the following relevant history in this matter:
“BACKGROUND
19 April 1980 Applicant born in Burma [Note: the applicant was born in Burma, but taken to Bangladesh at an early age. The refugee claims were made against Burma. See the Judgment of Wilcox J. in NALB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 614 – N286 of 2003 at annexure “B” to the affidavit of Nicola Johnson at [2], [3], [6] and [7].]
3 February 2001 Applicant arrived in Australia
DIMA
16 March 2001 Applicant lodged an application for a protection visa
15 May 2001 Delegate of respondent refused application for a protection visa
RRT
13 June 2001 Applicant applied to RRT for review of the delegate’s decision
20 January 2003 Delegate’s decision affirmed by RRT
12 February 2003 RRT decision handed down
FCN286 of 2003
11 March 2003 Application for judicial review lodged in the Federal Court
16 June 2003 Orders and judgment of Wilcox J dismissing application with costs [see annexure “B” of the affidavit of Nicola Johnson].
FMCSZ214 of 2004
28 January 2004 Application for judicial review filed
19 May 2004 Notice of Objection to competency filed and served
28 May 2004 Notice of Motion for summary dismissal filed and served
13 September 2004 Orders and judgment of Driver FM upholding respondent’s objection to competency and dismissing application as incompetent with costs fixed in the sum of $2,500.00
FFCN1357 of 2004
17 September 2004 Application for leave to appeal lodged in the Federal Court
11 November 2004 Orders and judgment of Emmett J dismissing the application with costs fixed in the sum of $600.00
HCS465 of 2004
30 November 2004 Application for special leave to appeal lodged in the High Court
29 August 2005 Orders of McHugh and Heydon JJ dismissing application [see annexure “C” of the affidavit of Nicola Johnson]
RRT
1 November 2005 Applicant applied to RRT for review of Delegate’s decision dated 15 May 2001 [see annexure “D” of the affidavit of Nicola Johnson]
15 February 2006 RRT found it had no jurisdiction to review the Delegate’s decision [see annexure “E” of the affidavit of Nicola Johnson]
FMCSYG 679 of 2006
6 March 2006 Application for judicial review lodged in the Federal Magistrates Court to review decision of RRT dated 15 February 2006”
The Tribunal's decision record (in relation to the decision which is the subject of review before me now) is reproduced at annexure “E” to the affidavit of Nicola Johnson. The Tribunal identified the critical question as being whether it had jurisdiction to review the decision of the delegate of the respondent Minister made on 15 May 2001, on the basis of the application for review which was lodged on 1 November 2005. It noted that it had formed a preliminary view that it did not have jurisdiction on the basis that the decision in question had already been reviewed, and because the second application for review was received outside the prescribed time limit. The Tribunal noted that it had written to the applicant on 20 December 2005 inviting submissions on these issues, and that the applicant responded by letter dated 3 January 2006.
The Tribunal's “Reasons for Decision” are at pages 22.7 to 24.2 of annexure “E” to the affidavit of Nicola Johnson. The Tribunal found that (all page references are to annexure “E” of the affidavit of Nicola Johnson):
1)It was satisfied that the contents of the notice of the delegate’s decision made on 15 May 2001 complied with the relevant legislative requirements of the Migration Act 1958 (“the Act”) (page 23.1), and that the letter of notice dated 15 May 2001 had been sent to the applicant’s address for service, and his residential address (page 23.2).
2)The applicant was taken to have received notice on 24 May 2001 and as such the 28 day period within which the review application to the Tribunal must be lodged ended on 21 June 2001. In this regard the Tribunal noted that the current application for review was not received until 1 November 2005 (page 23.3).
3)The application for review therefore was not a valid application and the Tribunal had no jurisdiction to review the delegate’s decision (page 23.4).
4)The applicant had in fact lodged an earlier application within the mandatory time limit specified for review and that the previously constituted Tribunal (the “earlier” Tribunal) had conducted a review and notified the applicant of its (unfavourable) decision, made 20 January 2003, by letter dated 12 February 2003 (page 23.5).
5)As the Tribunal had already discharged its functions under the Act to review the delegate’s decision of 15 May 2001, it no longer had jurisdiction (page 23.6)
6)There was nothing contained in the applicant’s submission to the Tribunal, dated 3 January 2006, to provide a basis for accepting the review application lodged 1 November 2005 (page 24.1).
In his application for review filed in this Court on 6 March 2006 the applicant states as the grounds of review:
“1. The delegate and the tribunal has wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution in my case.
2. The delegate and the Tribunal applied the wrong test in relation to whether or not a Convention reason was the essential and significant reasons for the persecution.
3. The delegate and the Tribunal has improperly dealt with the aspect of the claim and declared my application invalid and further denied my right to appear before the tribunal”
The applicant appeared in person with the assistance of an interpreter in the Bengali language. The applicant was not able to add anything of substance to his written application to the Court. All that he said was that he was not a lawyer and therefore it was not possible to “mention the legal things”. His claim was that he wanted “fair justice”. Ms. Johnson appeared for the respondent.
I note that the applicant states on the face of his application that he complains of the decision of 15 February 2006 (corresponding to the “second” Tribunal decision). However, the grounds in his application refer to the “delegate and the Tribunal”. Given the specific reference to the decision of 15 February 2006, I took the application to relate solely to the decision of the Tribunal made on 15 February 2006 and its alleged failure to review the delegate’s decision. I note that the applicant still contends the decision contains error, even though it was reviewed by the “earlier” Tribunal, whose decision, in turn, was the subject of judicial review once before this Court, twice before the Federal Court (once on appeal) and by the High Court.
In any event, I note that a request for review of the original delegate’s decision in the case before me would not assist the applicant, as any defect that may have existed in that decision would have been “cured” by the full merits review of that decision conducted by the “earlier” Tribunal. I note in this regard Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906 and SZGMZ vMinister for Immigration [2005] FMCA 1549 per Smith FM at [23].
It is abundantly clear from an examination of the Tribunal’s decision record that, simply, it found it had no jurisdiction to review the decision of the delegate made on 15 May 2001 to refuse a protection visa to the applicant. The Tribunal had already discharged its statutory functions in relation to a merits review, and the application was lodged out of time.
The applicant’s specific grounds of complaint as raised in his application to the Court now are clearly of no assistance to the applicant. Each ground of complaint attacks, in various ways, the “earlier” Tribunal’s assessment of the applicant’s refugee claims, and further the “earlier” Tribunal’s application of the relevant law in relation to that assessment. Grounds 1, 2 and partly ground 3, currently before the Court, appear to complain about errors in the delegate’s decision and the subsequent merits review by the “earlier” Tribunal. No particulars whatsoever are put forward in support of these mere assertions. But what is clear on the evidence before the Court is that the delegate’s decision was the subject of merits review by the Tribunal. The Tribunal decision was reviewed by the Federal Court. The applicant then filed an application complaining of the same decision in this Court, and then sought leave to appeal in the Federal Court, which was refused. The applicant then sought special leave to appeal to the High Court. Having been unsuccessful the applicant then sought to recommence the proceedings by lodging another purported application for review before the Tribunal, which is the stated subject of complaint before the Court now.
The Tribunal was not able to assess the applicant’s claims as it found it had no jurisdiction to do so. This finding by the Tribunal, in the circumstances before it, was clearly open to it. The applicant was given the opportunity to address the Tribunal’s preliminary view (in writing) and did so. I can see no error in what the Tribunal has done in this regard. The applicant’s application to this Court clearly has no prospect of success. The respondent, referring to SZESD v Minister for Immigration & Anor [2006] FMCA 459 and SZHWA & Ors v Minister for Immigration & Anor [2006] FMCA 451 (decisions of Smith FM and Scarlett FM respectively), submits that in these circumstances it is open for the Court to find that the proceedings are an abuse of process. I agree and I do so find. In the circumstances put before the Court now, the application has no prospect of success. The bringing of it, in the circumstances, is a clear abuse of the process of the Court. I dismiss the application accordingly.
Further, the respondent seeks that the applicant pay the first respondent’s costs on an indemnity basis and that no further application by the applicant to review the decisions of the Refugee Review Tribunal dated 20 January 2003 and 15 February 2006 be accepted for filing except with leave of the Court. While the Tribunal’s latest decision had not been the subject of previous judicial review the delegate’s decision was reviewed on its merits and this review was the subject of extensive judicial review. The applicant now claims that he wants “fair justice”.
I cannot see on what is before me that this has been denied to him. The applicant has, in my view, already had a “fair go” before the Tribunal and the Courts. There comes a point where his refusal to accept (understandable at one level) the judgments delivered, crosses over from persistence to achieve the desired outcome, to an abuse of the process of the Court. Such a point has been reached now. In my view, given the applicant’s litigation history, an indemnity costs order is justified, as is an order limiting his capacity to file his complaint again in this Court without at least needing to show to the Court that leave should be granted. I will make the orders sought by the respondent.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 2 August 2006
1
5
2