SZCWS v Minister for Immigration - [2007] FMCA 1458

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCWS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1458

PRACTICE & PROCEDURE – MIGRATION – Vexatious litigant – whether leave to institute proceedings should be granted –relevant factors.

Migration Act 1958 (Cth)
Federal Magistrates Court Rules r.13.11

Colgate Palmolive v Cussons Pty Limited [1993] 46 FCR 225
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
SZASP v Minister for Immigration and Citizenship [2007] FCA 771
SZCWS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 773
SZCWS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1145

Applicant:

SZCWS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2276 of 2007

Judgment of:

Barnes FM

Hearing date:

20 August 2007

Delivered at:

Sydney

Delivered on:

20 August 2007

REPRESENTATION

Applicant:

No appearance

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Leave to institute proceedings against the Minister for Immigration and the Refugee Review Tribunal in relation to the Tribunal decision dated 26 June 2007 is refused.
The applicant shall pay the first respondent’s costs on an indemnity basis fixed in the sum of $1,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2276 of 2007

SZCWS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 6 June 2006 (in SZCWS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 773), proceedings by the applicant seeking review of a decision of a delegate of the first respondent of

16 February 2001 not to grant the applicant a protection visa, (which followed five earlier occasions in this Court, the Federal Court and the High Court in which the applicant had sought to challenge a 2003 decision of the Refugee Review Tribunal affirming the delegate’s decision) on the application of the Minister, Nicholls FM ordered pursuant to r.13.11(3) of the Federal Magistrates Court Rules that the applicant may not institute proceedings against the Minister for Immigration, the Minister’s delegate or the Refugee Review Tribunal without leave of the court. Leave to appeal to the Federal Court was refused by Jacobson J on 17 August 2006 (see SZCWS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1145), as was a subsequent application for special leave to appeal to the High Court (on 23 May 2007).
On 14 June 2007 the applicant lodged a second application for review of the delegate’s decision with the Tribunal. On 26 June 2007 the Tribunal found that as there had been a previous review by the Tribunal of the decision of the delegate of the first respondent not to grant the applicant a protection visa it had discharged its functions under the Migration Act 1958 (Cth) and no longer had jurisdiction.
On 24 July 2007 the applicant filed an application in this Court seeking review of the decision of the Refugee Review Tribunal dated 26 June 2007. The respondents are the Minister for Immigration and Citizenship and the Refugee Review Tribunal.
It is relevant to note that in SZCWS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 773 Nicholls FM observed that having brought the Minister repeatedly before the courts, the applicant had not pursued his applications with any vigour. This was said to be evident in his failure to appear on occasion and the filing of notices of discontinuance. It was said (at [38]) that he had merely waited to commence another set of proceedings. The proceedings before Nicholls FM were the sixth proceedings in which the Minister had been brought to court by the applicant. His Honour found that the outcome ultimately sought by the applicant was to obtain a visa to remain in Australia.
Nicholls FM set out the extensive litigation history of the applicant in proceedings against the Minister and the Tribunal and found that the application then before the court constituted an abuse of process, was frivolous and vexatious, that the application for review of the delegate’s decision was obviously untenable and could not succeed and that the applicant had filed that application for the collateral purpose of extending his stay in Australia. Given that there had been proceedings by the applicant in the Federal Court, the Federal Magistrates Court, the Federal Court on Appeal and then the High Court in circumstances where no reasonable grounds had been put forward, that courts had consistently found the proceedings to be without merit and that the applicant sought to continue the process by again bringing proceedings, Nicholls FM made an order under r.13.11 that the applicant may not institute proceedings against the Minister, delegate or Tribunal without the leave of the Court.
At the conclusion of his judgment his Honour stated (at [9]) for the benefit of the applicant that while he may attempt to bring such proceedings he must first obtain the leave of the court and would need to satisfy the court that the proceeding was not an abuse of process and that there was a prima facie ground for the proceeding (see r.13.11(6)).
As indicated, on 14 June 2007, after the High Court refused the application for special leave to appeal from the decision of Jacobson J refusing leave to appeal, the applicant sought a further review by the Tribunal of the delegate’s decision of 16 February 2001 and on 26 June 2007 the Tribunal found that it had no jurisdiction.
The applicant now purports to seek review of that Tribunal decision. The application for review was accepted by the registry despite the order of Federal Magistrate Nicholls. The matter has come before me today on the first return date. The applicant did not appear at the time when the matter was listed at 10:15am. Nor is he present now some 25 minutes later.
The solicitor for the first respondent agreed that while the application would be invalid in the absence of leave, it was appropriate that the court deem the application for review of the tribunal decision to be an application for leave to institute proceedings. It was also sought that despite the absence of the applicant, the application should be dealt with today pursuant to r.13.03A.
I consider that, particularly in light of the applicant’s litigation history as set out in Federal Magistrate Nicholls’ judgment (and which is before the Court in the affidavit of Nicola Johnson sworn on 6 August 2007) this is not a case in which it would be appropriate to adjourn to allow the applicant an opportunity to appear at a later date. The applicant was put on notice by Federal Magistrate Nicholls’ judgment of the need not only to obtain the leave of the Court but also of what it was necessary for him to establish. In all the circumstances I consider it appropriate to deem the application that he filed on 24 July 2007 and the accompanying affidavit to be an application for leave to institute proceedings against the Minister for Immigration and the Refugee Review Tribunal.
Under r.13.11(6) the Court must not give such leave unless satisfied that the proceeding is not abuse of process and that there is a prima facie ground for the proceeding.
On the material before me I am not satisfied of the matters in r.13.11(6). The application to this Court relies on general and unparticularised grounds: that the Tribunal failed to act according to the migration law and regulations, that the Tribunal did not apply the correct laws, that it misinterpreted the migration laws and that it failed to exercise its jurisdiction under the Migration Act 1958 (Cth). These general and unparticularised grounds are repeated in the affidavit which attaches the decision of the Tribunal. They do not establish a basis for review of the Tribunal decision.
Moreover, there is authority that where an applicant seeks a second review of a delegate’s decision, the Tribunal no longer has jurisdiction to review the delegate’s decision, as it has already discharged its functions under the Migration Act to review that decision (see Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301). Hence a decision to that effect (as in this case) is a correct decision in which no jurisdictional error is apparent. (See in particular SZASP v Minister for Immigration & Citizenship [2007] FCA 771 at [4] and cases cited therein.) There is nothing in the material before me to establish that there is, either on the basis of the grounds set out in the application of 24 July 2007 or otherwise, a prima facie ground for the proceeding.
Further, I am not satisfied, having regard to the applicant’s extensive litigation history, (as set out in SZCWS at [37]) the manner in which these proceedings have been instituted with general and unparticularised grounds which have no prospect of success and in circumstances where the applicant has, despite having sought to initiate these proceedings, not appeared today, that these proceedings are not an abuse of process.
I have had regard to the fact that the registry initially marked the application as filed and gave a time and date for first directions of 2:15pm on Thursday, 9 August 2007 before a Registrar. However at the request of the first respondent the first court date was changed to 10:15am today, 20 August 2007 before me. The applicant was notified by the court by letter of 7 August 2007 sent to the address provided on the application. The solicitors for the respondent also wrote to the applicant at the same address on 9 August 2007 advising him that at the request of the first respondent the matter had been re-listed for directions today, drawing his attention to the fact that leave of the court was necessary and stating that the respondent would oppose any application for leave to institute these proceedings.
The applicant has, however, not appeared today. There is nothing to suggest that he appeared on 9 August 2007. He has not put any material before the court in support of a contention that the proceedings are not an abuse of process or to establish that there is a prima facie ground for review. In circumstances where the application cannot succeed, where there is an extensive litigation history which involves reliance on formulaic grounds and where the applicant has not appeared to seek leave or indeed put any information before the court in relation to the seeking of leave, I am satisfied that in this instance it can be inferred that the applicant has a collateral purpose of extending his stay in Australia. I cannot be satisfied that these proceedings are not an abuse of process.
As I am not satisfied as required under r.13.11(6), the applicant cannot and should not be granted leave to institute proceedings against the Minister and Tribunal in relation to the Tribunal decision of 26 June 2007. The appropriate order is that leave to institute such proceedings against the Minister for Immigration and the Refugee Review Tribunal is refused.
The first respondent seeks that the applicant pay his costs on an indemnity basis in the sum of $1,800. It is appropriate that such a costs order be made, despite the nature of these proceedings (as a deemed application for leave) given the manner in which the proceedings were purportedly initiated by the applicant despite the order of FM Nicholls and having regard to the involvement of the respondent in opposing that application and in putting relevant material before the Court as foreshadowed in the letter to the applicant of 9 August 2007.
In light of the principles in Colgate Palmolive v Cussons Pty Limited [1993] 46 FCR 225 in particular at [233] per Sheppard J as to when indemnity costs are appropriate, I am also satisfied that this is a case in which the applicant should pay the first respondent’s costs on an indemnity basis.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 30 August 2007