SZCOZ v Minister for Immigration
[2008] FMCA 1310
•4 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1310 |
| MIGRATION – Application for leave to institute proceedings in relation to a decision of the Refugee Review Tribunal – leave refused. |
| Migration Act 1958 (Cth) |
| Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 Horvath v Commonwealth Bank of Australia [1999] FCA 504 Jayasinghe v Minister for Immigration and Ethnic Affairsand Another (1997) 76 FCR 301 Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966 SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1414 SZCOZ v Minister for Immigration & Anor [2004] FMCA 914 SZCOZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 175 SZCOZ v MIMIA [2005] HCATrans 713 SZCOZ v Minister for Immigration & Anor [2005] FMCA 1907 SZCOZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 422 SZCOZ v Minister for Immigration & Anor [2006] FMCA 1332 SZCOZ v Minister for Immigration & Anor (No 2) [2006] FMCA 1606 SZCOZ v Minister for Immigration & Citizenship [2007] FCA 227 SZCOZ v Minister for Immigration & Citizenship [2007] FCA 641 SZCOZ v Minister for Immigration and Citizenship & Anor [2008] HCASL 9 SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 Velissaris v Maryvel Investments (in liq) (No 2) [2008] FCA 511 Wentworth v Attorney-General NSW (1988) 12 NSWLR 191 |
| Applicant: | SZCOZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2043 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That leave to institute proceedings against the Minister for Immigration & Citizenship and the Refugee Review Tribunal in relation to the Tribunal decision signed on 9 July 2008 is refused.
That the applicant shall pay the first respondent's costs on an indemnity basis fixed in the sum of $1,295.
That the applicant shall serve upon the respondents any further proposed application for the leave of the Court to institute any proceedings seeking review of a decision of the Refugee Review Tribunal or of a delegate of the first respondent at least three (3) clear days prior to that application being filed in Court.
That any such application by the applicant shall be made and determined ex parte unless the respondents seek to be heard in relation to that application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2043 of 2008
| SZCOZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for leave to institute proceedings. On 7 August 2008 the applicant sought to file an application in this Court seeking review of a decision of the Refugee Review Tribunal made on 9 July 2008 that the Tribunal did not have jurisdiction to review a decision of a delegate of the first respondent not to grant the applicant a protection visa. On 20 October 2006 Federal Magistrate Raphael made orders that the applicant not be permitted to file any further applications in this Court seeking review of a decision of the Refugee Review Tribunal or of a delegate of the respondent without leave of this Court. (See SZCOZ v Minister for Immigration & Anor (No 2) [2006] FMCA 1606). The matter comes before the Court by way of an oral application for leave to file the review application
It appears from the decision of Raphael FM that he made such an order, not on the basis of declaring the applicant a vexatious litigant, as provided for in Rule 13.11 of the Federal Magistrates Court Rules, but rather on the basis that he had the power to do so consistent with the views expressed by Jacobson J in SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 at [22] – [28]. This approach has been referred to with approval and followed in other Federal Court decisions (see for example SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1414 at [10] per Madgwick J suggesting that the Federal Court has a similar power and Velissaris v Maryvel Investments (in liq) (No 2) [2008] FCA 511 at [20] per Gordon J to the same effect).
Hence Rule 13.11(6) is not applicable in these proceedings. It is nonetheless necessary for me to determine whether leave should be given to the applicant to institute these proceedings. It is appropriate to have regard to all of the circumstances including, in particular, whether I am satisfied that the proceeding is not an abuse of process and that there is prima facie ground for the proceeding (as would also be relevant in considering such an application under Rule 13.11(6)).
It is necessary to have regard to the applicant’s litigation history. In light of that litigation history, which is extensive, it can be inferred that the intended further proceedings would be an abuse of process. This is a particularly obvious case in that respect. There have been three Tribunal decisions and at least ten occasions on which members of the judiciary (from this Court, the Federal Court and the High Court) have considered proceedings initiated by this applicant in relation to the review of his application for a protection visa.
The applicant’s litigation history is detailed in an affidavit of Katherine Elizabeth Whittemore sworn on 22 August 2008 and filed on that day and relied on by the first respondent. The applicant first lodged an application for a protection visa on 21 July 2003. That application was refused and he sought review by the Tribunal. On 17 December 2003 the Tribunal (T1) affirmed the decision of the delegate. On 29 January 2004, the applicant filed an application for judicial review of the decision of T1 in this Court. That application was dismissed by Driver FM on 6 September 2004. It is apparent that that order was made on the basis of the non-appearance of the applicant.
The applicant filed an application to set aside those orders on 1 December 2004. Driver FM dismissed the application with costs (SZCOZ v Minister for Immigration & Indigenous Affairs [2004] FMCA 914). The applicant sought leave to appeal to the Full Court of the Federal Court. On 18 February 2005 Moore J ordered that the application for leave to appeal be dismissed with costs (SZCOZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 175. The applicant sought special leave to appeal in the High Court of Australia. Those proceedings were dismissed on 8 September 2005 by Hayne and Callinan JJ. I note (see SZCOZ v MIMIA [2005] HCATrans 713) that Hayne J dealt with a number of applications at the same time from various applicants that were substantially identical and all of which claimed that the Tribunal decision was affected by errors of the kind identified in Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966. His Honour observed that there had been no attempt to identify a sufficient legal or factual basis for such contentions or to relate the complaints to what had happened either in the courts below or the in Tribunal, which his Honour indicated appeared to have been entirely orthodox and untainted by any discernable error. Hayne J stated that the use of such common form applications was to be deprecated and that none of them would enjoy any prospects of success.
On 26 September 2005, after being unsuccessful in the High Court, the applicant initiated another application for judicial review of the T1 decision in this Court. On 5 December 2005 Smith FM dismissed the application with costs and made an order that no further application for review of the decision of the Refugee Review Tribunal of 17 December 2003 handed down on 14 January 2004 or the delegate’s decision be accepted for filing without prior leave of the Court (SZCOZ v Minister for Immigration & Anor [2005] FMCA 1907). The applicant filed a notice of appeal from the orders of Smith FM. That application was dismissed on 13 March 2006 by Graham J (SZCOZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 422).
The applicant then lodged a second application with the Tribunal for review of the delegate’s decision on 30 March 2006. On 31 March 2006 the Tribunal (T2) found that it had no jurisdiction to review the delegate’s decision. The applicant sought judicial review of that decision in this Court on 26 July 2006. On 31 August 2006 Raphael FM dismissed the application for non-appearance of the applicant (SZCOZ v Minister for Immigration & Anor [2006] FMCA 1332). The applicant filed an application to set aside the dismissal for non-appearance. It was on the hearing of that application that Raphael FM made the order that leave of the Court was required for further proceedings (SZCOZ v Minister for Immigration & Anor (No 2).
In the course of his judgment Raphael FM considered the application for review of the second Tribunal decision which had been made on the basis that the Tribunal was functus officio as the decision had already been the subject of review. His Honour referred to the fact that the applicant’s claims had been considered in detail by Smith FM, addressed an argument that the applicant sought to raise about his migration agent, indicated that there was no jurisdictional error he could find in the Tribunal’s conclusions and dismissed the application as doomed to fail pursuant to Rule 13.10(a) on the basis that it had no reasonable prospects of success.
The applicant then sought leave to appeal and an extension of time in the Federal Court. Moore J dismissed the application for non-appearance (SZCOZ v Minister for Immigration & Citizenship [2007] FCA 227). The applicant filed a notice of motion to set aside the orders. Moore J dismissed that motion (SZCOZ v Minister for Immigration & Citizenship [2007] FCA 641).
The applicant then sought special leave to appeal to the High Court (see SZCOZ v Minister for Immigration and Citizenship & Anor [2008] HCASL 9). Hayne and Crennan JJ referred to the fact that the T2 had found that it did not have jurisdiction and that the earlier Tribunal decision in T1 had been unsuccessfully challenged by the applicant in the proceedings that I have described. The application for special leave was brought out of time and their Honours found that an appeal would enjoy no prospects of success. The application was dismissed.
On 18 June 2008 the applicant lodged a third application for review of the delegate’s decision with the Tribunal. On 9 July 2008 the Tribunal (T3) found that it had no jurisdiction to review the application. It is that Tribunal decision that is the subject of the application for judicial review in relation to which the applicant now seeks leave to proceed. The Tribunal found that as it had already considered the applicant’s application for review of the delegate’s decision it had already discharged its functions under the Migration Act 1958 (Cth) and had no jurisdiction to review that decision again. It referred to Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 and pointed out that even if circumstances in an applicant’s country had changed that did not provide a basis for the Tribunal to accept a second review application or to reconsider the delegate’s decision.
There is nothing in the material before the Court to indicate that the Tribunal erred in that respect such as to suggest that there is a prima facie ground for the proposed proceeding. The grounds in the application which the applicant wishes to proceed on are generally expressed and unparticularised grounds that the Tribunal denied the proper application of law, denied natural justice to the applicant and did not follow procedure.
In oral submissions the applicant suggested that it was unsafe for him to return home. That does not establish a prima facie case of jurisdictional error in the decision of the Tribunal. He also raised the fact that he had not been invited to a hearing by T2 and T3. There is, however, no obligation on the Tribunal under the Migration Act or otherwise to invite an applicant to a hearing in circumstances where it determines that it has no jurisdiction to determine the application.
In all the circumstances, having regard to the applicant’s migration history, I am satisfied that an inference can be drawn that these proceedings are sought to be instituted for the purpose of prolonging the applicant’s stay in Australia and hence would constitute an abuse of process.
In those circumstances I am satisfied that the applicant should not be granted leave to institute proceedings against the Minister and the Tribunal in relation to the Tribunal decision of 9 July 2008 as the applicant seeks to do in his application dated 7 August 2008. Leave to institute proceedings against the Minister for Immigration and the Refugee Review Tribunal in relation to the Tribunal decision dated 9 July 2008 should be refused.
The applicant’s extensive litigation history about which members of the judiciary have on a number of occasions expressed concern, is such as to suggest that he will not be deterred from seeking to institute further proceedings in this Court. The applicant has enjoyed the attention of numerous judicial officers in considering his application and in none of those proceedings has he succeeded. I am concerned that he is likely to seek to continue to bring completely unmeritorious applications to this Court. In those circumstances I consider it is appropriate to make an order of the nature that was made by Weinberg J in Horvath v Commonwealth Bank of Australia [1999] FCA 504 (consistent with the approach taken by Needham J and upheld by the New South Wales Court of Appeal in Wentworth v Attorney-General NSW (1988) 12 NSWLR 191 at 196) that any further applications by the applicant for leave to institute in this Court any proceeding against either or both of the respondents seeking review of a decision of the Refugee Review Tribunal or of a delegate of the first respondent be made and determined ex parte. However the applicant should be required to serve upon the respondents any proposed application at least three clear days prior to it being filed in the Court, thus enabling the respondents to be heard, should they desire to do so.
I also consider it appropriate that the applicant pay the costs of the first respondent. The first respondent seeks costs on an indemnity basis in the sum of $1,295. I consider in all the circumstances of this case having regard to the principles in Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 at [223] per Sheppard J and notwithstanding the nature of these proceedings as an application for leave, it is appropriate that such an order be made, given the circumstances in which the applicant endeavoured to file a review application despite the order of Raphael FM.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 September 2008
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