SZCRS v Minister for Immigration
[2006] FMCA 233
•8 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCRS & ANOR v MINISTER FOR IMMIGRATION | [2006] FMCA 233 |
| MIGRATION – Delegate’s decision refusing protection visa – previous merits and judicial review – application dismissed as abuse of process. |
| Acts Interpretation Act 1901 (Cth) s.8 |
| NBGZ v Minister for Immigration (2005) FCAFC 119 SZCRS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 673 SZCRS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 908 SZCRS v Minister for Immigration [2005] FMCA 81 SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821 SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549 SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844 |
| First Applicant: | SZCRS |
| Second Applicant: | SZCRT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG 3520 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 8 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2006 |
REPRESENTATION
| Counsel for the Applicants: | First applicant in person |
| Counsel for the Respondent: | Ms Palmer |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the respondent’s costs on an indemnity basis in the sum of $2,700.
Direct that no further application for review of the decision of the Refugee Review Tribunal dated 14 January 2004 reference N03/47154 or for review of the decision of the delegate of the respondent dated
15 July 2003 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3520 of 2005
| SZCRS & SZCRT |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The application in this matter was filed on 28 November 2005, at a time when the Court had jurisdiction under s.483A of the Migration Act 1958 in relation to all decisions made under the Migration Act. That jurisdiction has now been repealed by the Migration Litigation Reform Act 2005, but the repeal does not affect the continuance of the present proceeding (see sch.1, cl.41 of the amending Act, and Acts Interpretation Act 1901 s.8).
The application seeks orders by way of judicial review of a decision made by a delegate in the Department of Immigration on 15 July 2003, in which the applicants were refused protection visas.
At the first Court date on 17 January 2005, the Minister foreshadowed an interlocutory application seeking the summary dismissal of the application, inter alia, as an abuse of the process of the Court. The first applicant was given on that day an affidavit setting out the factual background. I listed the application for hearing today, and I am satisfied the applicant was subsequently served with the interlocutory application and the Minister's written submission in sufficient time for him to prepare for today's hearing. He applied for an adjournment to obtain legal advice, but I refused it. In my view, taking into account the history which I shall recount below, he has had more than enough time to obtain legal assistance for an application for judicial review of a decision made on 15 July 2003.
The Minister's interlocutory application contends that the proceeding is an abuse of process due to a history of litigation, and because the application has no merit. In respect of the latter issue, I have considered whether the application is "plainly untenable and unarguably doomed to fail" (see NBGZ v Minister for Immigration (2005) FCAFC 119 at [61]).
The applicants’ history of litigation is as follows.
There is no doubt that in fact they received notice of the delegate's decision, since they exercised their right of merits review by applying to the Refugee Review Tribunal within the mandatory time limit.
The Tribunal affirmed the delegate's decision in a decision handed down on 4 February 2004 and dated 14 January 2004. The Tribunal noted that the applicants had consented to it deciding the matter on the papers without a hearing. It addressed the first applicant’s claims to fear return to his country of nationality, which was India, and concluded that it was unable to be satisfied that he had a well-founded fear of persecution.
The applicants sought judicial review of that Tribunal decision in this Court, in an application which did not descend to giving any particulars of some general grounds.
On 21 January 2005 Scarlett FM dismissed the application for non-compliance with an order requiring a properly particularised amended application (see SZCRS v Minister for Immigration [2005] FMCA 81). It is clear that his Honour considered the merits of judicial review generally.
The applicants sought leave to appeal to the Federal Court, but leave was refused by Edmonds J on 23 May 2005 (see SZCRS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 673).
The applicants then sought special leave to appeal to the High Court of Australia, using a common form precedent referring to Muin's case, which had no relevance to the matter. Gummow and Kirby JJ dismissed the application on 9 November 2005 (see SZCRS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 908). When giving their reasons Gummow J said:
We have considered the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. The applicant's written case is a pro forma document of no assistance to the Court whatsoever. There would be no prospect of success in any appeal to this Court from the Federal Court. Accordingly, special leave to appeal is refused.
The applicants then commenced the present application in this Court on 28 November 2005. It reproduces a form of application which has circulated in recent months, and which I have had occasion to address on 12 previous occasions in applications such as the present.
The application contends that the delegate's decision was invalid due to a formal defect in the notification of the decision. For reasons which I have explained in SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549, in my opinion the application is doomed to failure, and is an abuse of process when brought in the circumstances such as the present, where an applicant has sought merits review and then judicial review in relation to a Tribunal decision.
My judgment in SZGMZ was upheld by Wilcox J (see SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844). In a similar matter, Wilcox J said:
Leave should be refused. The appeal would enjoy no prospect of success because it is obvious that the delegate's decision is now of no significance, having regard to the fact that the delegate's decision was reviewed by the Tribunal. There would be no possibility of any Court, in the exercise of its discretion, intervening to set aside the delegate's decision. (see SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821 at [8])
The first applicant today has not explained any purpose in the Court reviewing the legality of the delegate's decision, but has made a series of requests for "more time". However, in my opinion, for the reasons I explained in SZMGZ, I consider his present proceeding is an abuse of process, and that it is appropriate to make the orders sought by the Minister.
In the circumstances where the applicants show no appreciation of the need for finality in their litigation, and a readiness to use precedents without concern as to their merits or effect, I consider it also appropriate to make a direction precluding the filing of further applications in this Court without the prior leave of the Court.
I also consider costs on an indemnity basis would be appropriate.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 21 February 2006
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