SZCWS v Minister for Immigration
[2006] FMCA 773
•05 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCWS v MINISTER FOR IMMIGRATION AND ANOR | [2006] FMCA 773 |
| MIGRATION – Refugee – application made under AD(JR) and Migration Act – delegate’s decision is “cured” by the Tribunal –failure to “give” notification would not affect the validity of the delegate’s decision – no breach of natural justice – no reasonable cause of action – abuse of process – repeat applications bringing respondent before the Courts – applicant did not pursue applications with any vigour – application is frivolous and vexatious – costs on indemnity basis – no further applications without leave of the Court – application dismissed. |
| Administrative Decisions (Judicial Review) Act 1977, s.3(1) Migration Act 1958, ss.51A, 54, 57, 57(1)(b), 57(1)(c), 65, 66, 66(1), 66(2), 66(2)(a), 66(2)(b), 66(2)(c), 66(2)(d), 66(2)(d)(2), 66(4), 415(1), 417, 501G, 501G(2), 501G(4) Federal Magistrates Court Rules 2001, rr.13.10(c), 13.11 |
| Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58 SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549 Twist v Randwick Municipal Council (1976) 136 CLR 106 Re Minister for Immigration & Multicultural & Indigenous Affairs;Ex parte Palme [2003] HCA 56 Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No. 1) [2005] FMCA 211 NAMG vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 8541 Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZCWS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2887 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 February 2006 |
| Date of Last Submission: | 01 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 05 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Dr. Azzi (Direct Access) |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in the proceedings.
The applicant’s application is dismissed upholding the respondent’s Notice of Motion.
The applicant may not institute proceeding against the Minister for Immigration, her delegate or the Refugee Review Tribunal without leave of the Court.
The applicant to pay the first respondent’s costs on an indemnity basis set in the amount of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2887 of 2005
| SZCWS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The proceedings before me were commenced by an application filed on 7 October 2005 seeking review of the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant. The applicant asserts on the face of his application to this Court that he was notified of this decision on 16 February 2001. Before me I also have the respondent’s Notice of Motion filed on 24 October 2005 which seeks summary dismissal of the application for judicial review filed on 7 October 2005 on the grounds that the proceedings are an abuse of process, that the application fails to disclose a reasonable cause of action, and that the proceedings are vexatious. I also have before me, in support of the Motion, the affidavit of Nicola Johnson, a solicitor in the employ of the respondent’s solicitors, sworn on
21 October 2005.The applicant's history as it relates to his pursuit for recognition as a refugee in Australia is summarised in a chronology set out as annexure “A” to the affidavit of Nicola Johnson. The chronology reveals:
“BACKGROUND
10 December 1970 Applicant born in Bangladesh
20 on September 2000 Applicant arrived in Australia
DIMIA
26 September 2000 Applicant lodged application for a protection visa
16 February 2001 Delegate of respondent refused application for a protection visa
RRT
6 March 2001 Applicant applied to RRT for review of delegate’s decision.
10 December 2002 Delegate’s decision affirmed by RRT
14 January 2003 RRT decision handed down
Federal Court NSD98 of 2003
10 February 2003 Application for judicial review and affidavit filed [of RRT decision]
6 March 2003 Court book filed and served
6 March 2003 Directions hearing - no appearance by applicant - adjourned for further directions before Allsop J.
18 March 2003 Second directions hearing before Allsop J.
20 March 2003 Allsop J. ordered that the application be dismissed pursuant to Order 10 rule 3(2) with costs
Full Federal Court NSD421 of 2003
1 April 2003 Notice of appeal lodged
30 April 2003 Sackville J. orders that matter be listed on 15 May 2003 at 10:00am before Madgwick J. to determine whether leave should be granted to the appellant to file and serve a notice of appeal against the interlocutory judgement of Allsop J. given on 20 March 2003
12 May 2003 Notice of discontinuance lodged
Federal Magistrates SYG598 of 2004
Court
6 March 2004 Application for judicial review lodged
[of RRT decision]
12 May 2004 Notice of objection to competency and notice of motion for summary dismissal filed.
13 May 2004 Affidavit of Rohan John White filed and served
16 July 2004 Raphael FM dismissed application pursuant Part 13, rule 13.10(c) with costs fixed in some of $1,500.00 and ordered that the Registry is not to accept for filing any further application from this applicant relating to the decision of the refugee Review Tribunal dated 10 December 2002.
Full Federal Court NSD1242 of 2004
19 August 2004 Application for leave to appeal filed in Federal Court
14 September 2004 Stone J. dismissed application with costs in the amount $1,800 and ordered that the applicant be prevented from filing any further application in relation to decision of the RRT dated 10 December 2002 without leave of the Court
High Court S282 of 2004
30 September 2004 Application for special leave to appeal filed
26 May 2005 Hayne and Callinan JJ. dismissed the application for special leave to appeal
Federal Magistrates SYG2887 of 2005
Court
7 October 2005 Application for judicial review of the delegate’s decision filed
15 November 2005 Directions hearing.”
The application before me now is said to be made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (“the AD(JR) Act”), the Judiciary Act 1903 and Migration Act 1958 (“the Act”). This Court does have jurisdiction generally under the AD(JR) Act to review migration decisions. However, this must be seen in the light of what the High Court said in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [97]:
“It also is to be noted that changes were made by the Amending Act to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The Amending Act inserted par (da) in Sched 1 to the ADJR Act. Section 3(1) of the ADJR Act contains a definition of "decision to which this Act applies", which identifies decisions of an administrative character made, proposed to be made or required to be made under certain enactments, but excluding decisions included in any of the classes of decision set out in Sched 1. The par (da) of Sched 1 inserted by the Amending Act specifies:
‘a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958.’
Questions may arise respecting the construction of the ADJR Act and its application to decisions which are not privative clause decisions and in which jurisdictional error is relied upon...”
The High Court found that the exclusion of jurisdiction to review privative clause decisions under the AD(JR) Act would not apply in the case of a decision infected with jurisdictional error. If there is no such error then the operation of the AD(JR) Act is excluded.
The applicant asserts in the originating application to this Court that he is aggrieved because:
“1. The decision was not made according to law.
2.The decision failed to observe the prescribed method of delivering and notifying a decision.
3.The delegate did not have the power to give that decision to the applicant.
4.The decision was affected by jurisdictional error and breach of procedural fairness.”
The grounds of the application to support the orders sought by the applicant are expressed to be:
“1.A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified to the applicant and therefore, the procedures that were required by law to be observed in connection with the making of the decision were not observed.
2.The delegate who purported to make the decision did not have jurisdiction to give the decision. The Minister does not have a power to take this decision into effect. S66(1) and s66(2) of the Migration Act 1958 was not observed.
3.The decision was infected by error of law. The decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
4.The application is late. However, the applicant refers to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292 and Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24.
5.This application is not vexatious nor and abuse of process. A delegate’s decision can be reviewed by the court under certain Circumstances. The Court has previously reviewed decisions be the delegate in the matters of:
Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292,
SZCTH v Minister for Immigration (No.1) [2004] FMCA 211
NAMG v Minister for Immigration (No. 1) [2003] FMCA 541
Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132.”
The applicant attended the first Court date in this matter on 15 November 2005 before Registrar McIllhatton. On that day orders were made, by consent, that relevantly:
“2.The court book in this matter be the court book filed in proceedings no. N98 of 2003.
3.The applicant file and serve any affidavit evidence in response to the notice of motion by 13 December 2005.”
“6.Appoint as the return date for the respondent’s notice of motion for summary dismissal and notice objection to competency 10:15 a.m. on 20 February 2006…”
“7. The respondent file and served written legal submissions on the notice of motion 14 days before the hearing.
8. The applicant file and serve legal submissions on the notice of motion 7 days before the hearing.”
The respondent filed an outline of submissions on 20 January 2006. The applicant had not filed anything further in relation to his application up to the date of the hearing of the respondent’s Notice of Motion. At the hearing Ms. Johnson appeared for the respondent. Dr. Azzi (unexpectedly) appeared for the applicant on a direct access brief. While Dr. Azzi made oral submissions on the applicant’s behalf, I gave him (given his having been approached to assist in this matter at a late stage) the opportunity to make written submissions subsequent to the hearing. These were filed. The respondent subsequently advised (through legal representative) that she would rely on the submission already filed.
In support of the Notice of Motion Ms. Johnson submitted:
1)That the application discloses no reasonable cause of action because even if any jurisdictional errors affected the decision of the delegate it was “cured” by the decision of the Tribunal which has been held by the Courts not to be infected with error.
2)That the applicant's claim seeking review of the delegate’s decision, and complaint about the notification of the delegate’s decision, is so obviously untenable it cannot possibly succeed, and it follows therefore that the present application to review the delegate’s decision must fail. The respondent also pressed, that for this same reason, it was open to the Court to find that the proceedings are an abuse of process, frivolous or vexatious.
3)That the delay of over 4 years in raising the present challenge also constitutes an abuse of process, particularly in circumstances where the applicant had the opportunity to raise any particular complaint about the delegate’s decision and failed to do so until now.
4)That the proceedings are separately vexatious because the proceedings, in all the circumstances, can be regarded as having been brought for a collateral purpose (that is, to prolong the applicant’s stay in Australia) and not for the purpose of having the Court adjudicate on the issue to which they are said to give rise. Further, the application is also vexatious because the proceedings are so obviously untenable or manifestly groundless so as to be utterly hopeless.
5)In the alternative that the applicant is “estopped” on Anshun principles, in the absence of any special circumstances, from attacking the decision of the delegate in the present proceedings.
In his originating application to the Court the applicant appears to challenge the delegate’s decision on the following bases:
(1)That the making of the decision was infected by error of law, and that a breach of the rules of natural justice occurred in connection with the making of the decision.
The applicant did not identify in his application, nor did he file written submissions within the time required (I will deal with Dr. Azzi’s submissions below), elaborating on what exactly the breach of the rules of natural justice involved, nor whether there was any other error of law in the delegate’s decision.
(2)That the delegate who purported to make the decision did not have jurisdiction “to give the decision”.
The application for a protection visa is reproduced at Court Book (“CB”) 1 to CB 27, including a statement by the applicant dated
25 September 2000 at CB 26 to CB 27. The letter notifying the applicant of the decision to refuse the protection visa is at CB 28 to CB 29 and is dated 16 February 2001, and encloses the delegate’s decision record which is reproduced at CB 30 to CB 37. This material reveals that the applicant, who is a national of Bangladesh, sought a protection visa in Australia on the basis of his political affiliation with the Jatiya Party. He claimed that he came into conflict with political opponents, including being attacked and beaten and that “false cases” were filed against him. He finally left Bangladesh in January 1998, and obtained a job in Singapore, and from there came to Australia in September 2000. The delegate rejected the application on a number of different bases:1)While he accepted as plausible some of the applicant's claims, the delegate noted that the applicant had provided no evidence to support his claims.
2)But in any event, the delegate found that even if he was the target of any mistreatment, the applicant would be able to seek protection from the authorities, and in particular noted that the applicant's party held key government posts and was very influential in the then Bangladeshi Parliament. The delegate concluded on that basis that the applicant's claims were not well founded, and he had no real chance of being persecuted upon return to Bangladesh.
3)In this regard the delegate also found that there was a fair and independent judiciary system in Bangladesh, and that the applicant would be able to receive a fair trial if there were any charges still outstanding against him.
4)As a further, and separate, finding the delegate found that the applicant's claims of persecution related to his “locality in Bangladesh”, and that it would not be unreasonable for the applicant to relocate to another part of Bangladesh, and that he could safely do so.
The relief now sought by the applicant is essentially that the delegate’s decision be set aside and that the applicant’s matter be reconsidered by the respondent’s Department, and that the applicant be properly notified of this decision according to law.
Dr. Azzi’s submissions (both and the hearing and subsequently in writing) were that the delegate’s decision contained jurisdictional error and that this was not “cured” by the review conducted by the Tribunal. Dr. Azzi submitted that the jurisdictional error committed by the delegate appears at paragraph 5.2.6 of the delegate’s decision (reproduced at CB 36.7) where the delegate says:
“The high levels of the judiciary display a significant degree of independence… hence I believe that the applicant will be able to receive a fair trial if there are any charges still outstanding…”
Dr. Azzi’s submissions were that the delegate was required to properly consider the state of the judiciary in Bangladesh at all levels of the Court hierarchy, and not just at the higher levels. Secondly, that the Tribunal did not “cure” this “defect” when it subsequently considered the applicant's claims. Further, Dr. Azzi submitted that the delegate’s decision relating to the applicant's claim of false charges and his inability to obtain a fair trial was critical to the decision not to grant the applicant a protection visa in circumstances where neither the finding relating to adequate state protection (paragraph 5.2.5) nor the subsequent finding relating to the applicant's capacity to relocate could in his view be considered as ultimate findings on the same claim of false charges. As a separate issue he submitted that the delegate’s finding on relocation was not open to the delegate in light of the paucity of evidence available about the reasonableness of relocation, and that as the issue of relocation did not feature in the Tribunal's decision the delegate’s decision could not therefore have been “cured” by the later Tribunal decision.
The first claim made by Dr. Azzi was that the delegate did not look at all levels of the judicial hierarchy in Bangladesh as it related to the applicant's claims, and that by only looking at the higher levels of the judicial hierarchy the delegate failed to property consider the state of the judiciary in Bangladesh. Dr. Azzi however, in my view, and with respect, has been somewhat selective in highlighting only one part of what the delegate set out at paragraph 5.2.6. When the relevant paragraph of the delegate’s decision record is viewed as a whole, and in context, it is clearly open to a different interpretation to that put forward by Dr. Azzi.
The entire paragraph at 5.2.6 is:
“I also note that in Bangladesh there is a fair and independent judiciary system. The higher levels of the judiciary display a significant degree of independence and often rule against the government in criminal, civil and even politically controversial cases. Hence I believe the applicant would be able to receive a fair trial if there are any charges still outstanding against him.”
When read in context, the plain reading of the delegate’s decision is that at paragraph 5.2.5 the delegate accepted that it was plausible that the applicant was attacked by his political opponents, and that false cases were lodged against him, but that if he was the target of any mistreatment he would be able to seek protection from the authorities. The delegate made reference to the applicant’s party’s status following the most recent (July 1996) elections, and that the applicant's party held key government posts, and was very influential in the Bangladeshi Parliament. On that basis the delegate made a finding that the applicant's claims were not well founded, and nor did he have a real chance of being persecuted upon return to Bangladesh. The delegate then turned to look at, as an additional factor relevant to the issue of protection available to the applicant, the state of the judiciary in Bangladesh. Relevantly, Dr. Azzi does not quote in written submissions the delegate’s opening sentence on this point which on a fair reading of the delegate’s decision refers to the judiciary in Bangladesh as a whole, and the noting by the delegate that in Bangladesh there is a fair and independent judiciary system. In my view a fair reading of the delegate’s decision reveals that the delegate’s subsequent focus on the “higher levels” of the judiciary is to reinforce that while the judicial system taken as a whole is fair and independent, the higher levels in particular display a significant degree of independence and often rule against the government.
Further, in the circumstances of what the applicant brought to the Tribunal by way of claims, and in particular I note the applicant's statement reproduced at CB 26 to CB 27, I cannot see that there was any obligation on the delegate to make any further inquiries as suggested by Dr. Azzi. The delegate directly addressed the applicant's claims that he was involved in politics in Bangladesh, and in particular in political activity relating to his having worked for a candidate in the election, and that he had been attacked, and that a number of false cases had been filed against him. The delegate, as I have already set out above, accepted that it was plausible that the applicant had been attacked by political opponents and that false cases were launched against him but found, on the evidence available, that protection was available to the applicant, given the influential position of his party in the Bangladeshi Parliament, and also given the state of the independent and fair judicial system in Bangladesh. I do not accept Dr. Azzi’s submissions that the delegate was in error in the way that he approached this aspect of the applicant's claims.
But even if there had been jurisdictional error evident in the delegate’s decision, I accept the respondent’s submissions that the application before me is an abuse of process for the following reasons set out below.
The application seeking relief in relation to the delegate’s decision would in my view be refused at a final hearing because such relief would serve no legal purpose. Allowing this matter to proceed to a final hearing would be futile. I accept the respondent's submission that even if there were any jurisdictional errors affecting the decision of the delegate it was “cured” by the decision of the Tribunal which has been held not to be invalid, that is, without relevant error. I note the respondent’s reference to Wilcox J., in Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294:
“The decision is invalid because the decision maker failed to take into account relevant matter, but the matter has already been reconsidered by a second decision maker empowered to make whatever decision would initially to have been made and who has taken into account relevant matter, the initial defect may reasonably be regarded as “cured”.”
In my view there is clear law that a Tribunal decision will “cure” a delegate’s decision. In Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906 the Court said at [92]:
“The decision in Alvaro (supra) makes it clear that sections such as s 415, which permit the review body to exercise all the powers and discretions that are conferred by the Act on the original decision-maker, and which provides for it to make its own decision on the merits, will cure many defects which may have rendered the original decision invalid. Once the jurisdiction of the review body (here, the RRT) is enlivened, the decision it makes supersedes the original decision, and the invalidity of the original decision is irrelevant. As Alvaro illustrates, the section permits discretions and powers to be exercised by the RRT which were never even considered by the original decision-maker. See, in a comparable setting; McDougall v Warringah Shire Council (1993) 30 NSWLR 258.”
I also note the subsequent analysis at [93] to [96]:
“[93] Of course, both the general law and s 415(4) have the result that the RRT cannot ignore statutory constraints, and cannot make a valid decision that is not authorised by the Act or the regulations. Thus, if Heerey J in Li Wen Han (supra) were correct in his conclusion that the Act required a complete application on the day of lodgement, with no capacity for the later provision of missing information, then it may be that the RRT would be bound by that constraint, and could not grant a visa as was sought by the appellant. On the other hand if, as I have held, the application may be completed later, then, in my opinion, there is no reason why this cannot take place in the course of the review by the RRT, and Finn J was right to so hold in Phanouvong (supra).
[94] The importance which Lindgren J placed upon the Minister having the function of considering an application loses much of its force when the true extent and scope of s 415 is appreciated. It should also be borne in mind that, although the Minister does not participate in the review as an adversary, the Secretary receives a copy of the written statement under s 430(1) and any other document that contains evidence or material upon which the findings of fact were based, and is to be given notice of the handing down of the decision. The Minister, if he or she disagrees with the RRT decision, may substitute a decision more favourable to the applicant (s 417). Subject to that, the system makes the RRT rather than the Minister the final judge of the merits of the application. If it is in favour of the applicant, based upon the information before it, the applicant will succeed, no matter what view the Minister initially took or takes later. I therefore conclude that the RRT was entitled to consider the application on the merits.
[95] This construction of the Act seems to me to best accord with a rational and coherent system of review on the merits of adverse decisions as to protection visas. It cannot be assumed that an applicant will have the knowledge or qualifications to comply with all the statutory requirements in making an application and may not have immediately to hand relevant information from overseas. If, in circumstances such as the present, an applicant receives notice that a decision has been made rejecting the application on the merits, it can be taken by the applicant that there will be a review of the decision by the RRT as if it were the original decision-maker but on the materials before it rather than that which was before the original decision-maker. If there is, then the applicant has received the opportunity which the legislation provides, and there is no rational basis upon which the applicant should be entitled to a second chance. In the present case, the RRT did afford a merits review as sought by the applicant. It would be anomalous, in those circumstances, for the applicant to be able to complain to the Court that he was afforded the opportunity he had sought. He invoked the jurisdiction of the RRT and can hardly have the opportunity to complain when it was exercised. He has received the "fair deal" he was entitled to expect when the whole legislative scheme, including full merits review, is considered (Wu v Minister for Immigration (1994) 48 FCR 294, 298-300 (not affected by appeals)). It is not necessary for the purposes of this case to consider the position if there is invalidity in the application which is not cured.
[96] This conclusion is also consistent with general administrative law principles. In considering a related, but not identical, question in Twist v Randwick Municipal Council (1976) 136 CLR 106, Mason J said (at 116) (omitting citations):
"...the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have "cured" a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases - notably by the Privy Council in De Verteuil v Knaggs; Pillai v Singapore City Council and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission and King v University of Saskatchewan; cf Denton v Auckland City and Leary v National Union of Vehicle Builders where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing - in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal."
In the same case Jacobs J said (at 119):
"I do not think that it would at all accord with the legislative intention that an owner should be able to ignore rights of appeal ... and instead rely on an absolute invalidity in the order which a council had made."
See also Calvin v Carr [1980] AC 574 particularly at 594-5; R v Marks; Ex parte Australian Building Construction Employees & Builders Labourers Federation (1981) 147 CLR 471, 484-5; Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38, 51-53; and Preston v Carmody (1993) 44 FCR 1, 14-18. Put another way, the existence of a full review on the merits is an integral part of the statutory scheme.”
There is further clear authority that the migration Tribunals have the power to review and reconsider even legally invalid decisions as well as valid decisions of the Minister’s delegate: See Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58. The respondent has also referred me to the Judgement of Smith FM in SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549 and in particular at [23] and [24]. I have read that Judgement and with respect agree with what is set out at those paragraphs. I further note the similar factual circumstances before his Honour in that case, with the circumstances before me. In particular I note at [23]:
“… In my opinion, the structure of decision-making under the Migration Act leaves the Minister and her delegates functus officio to make decisions by way of reconsideration or further exercise of the power to grant or refuse visas under s.65, in circumstances where merits review has been sought and obtained under Pt.7 in relation to a protection visa application. An intention that the primary power should be regarded as exhausted in such a case is shown by the strict and mandatory time limits for seeking review, and by the absence of any power of reconsideration by the primary decision-maker.”
In the case before me the applicant has had the opportunity to seek a “de novo” merits review of the delegate’s decision. That opportunity was taken up. The decision on review was the subject of subsequent judicial review proceedings which revealed no flaw or error. In all these circumstances therefore, it is clear that it would be futile to allow further litigation as to whether the delegate’s decision was lawfully made or not. It is clear that at a final hearing the Court would decline to give the relief sought by the applicant as to the validity of the delegate’s decision on the ground that there would be no real purpose in doing so. It is also clear therefore that the current application would fail on this ground and to allow the application to continue would constitute an abuse of process.
Further, Dr. Azzi’s submission that the subsequent Tribunal decision did not “cure” the alleged error in the delegate’s decision is based on a specific alleged error (as it relates to the Judiciary in Bangladesh) by the delegate, which was not specifically addressed by the Tribunal. That is, he alleges that the Tribunal did not look at the situation relating to lower Courts.
In written submissions he provides other examples and takes issue with the finding on relocation, but all go to the complaint that the Tribunal did not “cure” the delegate’s decision because the Tribunal, in effect, did not address each and every specific issue in the delegate’s decision. I do not accept Dr. Azzi’s submission. The review conducted by the Tribunal does not involve the Tribunal looking at each and every finding made by a delegate and pronouncing whether the finding was “right” or “wrong”. Nor is the role of the Tribunal to specifically address any alleged defects in the delegate’s decision record. Clearly, the legislative scheme set out in Part 7 of the Act, in particular and as it relates to the exercise of the power relating to visas under s.65 of the Act and where review of an earlier decision is sought, requires the review to be conducted “a new”. This is particularly seen, for example, at s.415(1) of the Act, where the Tribunal is the given power to exercise all the powers and discretions that are conferred by the Act on the person who made the original decision. The Tribunal's subsequent powers to receive certain relevant documents, to seek additional information, its obligations to give the applicant certain information, and to invite an applicant to a hearing before it, all serve to underline the fact that the Tribunal conducts its own investigation, analysis and assessment of an applicant's claims. It makes findings, in every real sense, independent of whatever analysis, assessment or findings have been made by the original decision maker. While it is acknowledged that it is not exactly clear (in terms of its exact scope) what is precisely meant by the delegate’s decision being “cured”, this metaphor has been adopted at the highest judicial levels. See for example Twist v Randwick Municipal Council (1976) 136 CLR 106 per Mason J. at [116]. But what, in my view, is clearly based on relevant authorities, is that a Court will not give relief in respect of a delegate’s decision when the person affected by that decision has had the opportunity to seek a “de novo” merits review by a Tribunal and that opportunity has been taken, as in the case before me.
That Tribunal decision was the subject of considerable litigation. In particular, I note that the application in relation to that decision was dismissed as an abuse of process by Raphael FM on 16 July 2004. An application for leave to appeal filed in the Federal Court from Raphael FM’s Judgement and orders was dismissed by Stone J. who ordered that the applicant be prevented from filing any further application in relation to the Tribunal decision. The applicant has had his refugee claims assessed by two decision makers. The second decision (the Tribunal’s decision) has been the subject of extensive litigation, which involved a determination that the applicant's continued bringing of complaints about the Tribunal's decision to the Courts constituted an abuse of process.
But even further, the applicant in my view has no prospects of succeeding in an argument that a failure to comply with notification requirements arising under s.66 of the Act would invalidate a decision made by the delegate. Although this argument was not referred to, let alone pressed, by Dr. Azzi in his submissions, the wording of the application to the Court could be said to refer to such a complaint. The difficulty with the applicant’s assertion in this regard is that pursuant to s.66(4) of the Act, failure to give notification of a (delegate’s) decision does not affect the validity of the decision. The applicant's arguments that the failure to notify would invalidate the delegate’s decision must fail in the face of a clear legislative direction to the contrary. In this regard see also Re: Minister for Immigration & Multicultural & Indigenous Affairs;Ex parte Palme [2003] HCA 56 at [41]-[46], although I note the High Court was looking at a different section of the Act than the one relevant to the application before me. In that case the High Court was looking at s.501G of the Act in the context of the exercise of power to cancel a visa conferred by s.501G(2). The Court found, per Gleeson CJ., Gummow and Heydon JJ., at [45], that s.501G(4), regarding the interrelationship between cancellation and notification, contained a stipulation that a failure in notification does not of itself affect the validity of the cancellation. While the Court said that the decision under review, in that case cancellation, (in the case before me the delegate’s decision) may still be reviewed for jurisdictional error that might otherwise arise, the failure in notification, as was required, did not impeach the decision for jurisdictional error in circumstances where there was a stipulation that said that a failure in notification did not of itself affect the validity of the decision. The applicant's complaints about the notification therefore, and the assertion that the delegate did not have the jurisdiction to “give” the decision, would not serve to show error on the part of the delegate’s decision given the clear stipulation set out in s.66(4) of the Act.
Nor is there anything put forward by the applicant to support the mere assertion of a breach of the rules of natural justice occurring in connection with the making of the decision, or to support the claim that the decision was infected by error of law, beyond that put by Dr. Azzi in submissions. On one view of the applicant's complaints as stated in his application, and in particular looking at the authorities to which the applicant refers, it would appear that the applicant's argument is that the failure to properly notify him of the delegate’s decision was in itself the error of law, and that this constituted a breach of the rules of natural justice. If this is the case, and if this is all that is meant by the applicant’s written complaints as set out in his application, then in my view, what is set out above reveals that this is insufficient to show a reasonable cause of action.
But even if the applicant is now seeking to put forward a breach of the rules of natural justice, and an error of law in relation to the making of the decision, as distinct from the notification of the decision, then again I note nothing (other than the matters put forward by Dr. Azzi on his behalf and already dealt) with has been put before me by the applicant to support this claim. Nor is anything of this nature evident on the material before me. On what is before me the delegate’s decision record clearly shows that the delegate addressed all of the applicant’s claims as put by the applicant, found those claims to be deficient in the sense of lacking evidence in support, but clearly made a finding that protection was available to the applicant from the authorities in Bangladesh and, that separately, the applicant could reasonably relocate to another part of that country. In written submissions Dr. Azzi sought to distinguish the delegate’s findings in relation to the applicant’s ability to obtain a fair trial or to safely relocate, as not having been made in relation to the applicant’s claims of facing false charges. He sought to limit the delegate’s findings in this regard to having addressed the applicant’s capacity “to seek protection from the authorities” in the event he was the “target of any mistreatement” by his political opponents. In looking at the delegate’s decision record I cannot see Dr. Azzi’s submission as being a fair reading of what the delegate had done, especially when the decision is read as a whole. In any event the delegate clearly says at paragraph 5.2.5 (CB 36.6) that he accepted as plausible that the “applicant was attacked by political opponents and that false cases were lodged against him”. On any fair reading the delegate’s subsequent finding that he would be able to seek protection from the authorities clearly covers all of the applicant’s claims of harm (“if he was the target of any mistreatment” (emphasis added)). The delegate’s subsequent finding relating to the judiciary was clearly meant to also encompass all of the applicant’s claims to harm suffered (“I also note …” – paragraph 5.26 at CB 36.7). The delegate’s finding on relocation (at CB 36.8 to 5.2.7) clearly and logically follows from what preceded it (“Moreover the applicant’s claim of persecution…”). But of course even if this were not the case, as I have set out above, the “viewing” of the delegate’s decision by the Tribunal does not involve the Tribunal undertaking a point by point analysis of what the delegate has done, and the conduct of a merits review decision by the Tribunal would, in any event, “cure” any defects in the delegate’s decision.
There is nothing before me to show that the delegate did not have regard to all the information in the application (s.54 of the Act), nor that there was any breach of s.57 of the Act. In this regard the information that was relevant information was either given to the delegate by the applicant (s.57(1)(c) for the purposes of the application) or was not information that was specifically about the applicant or another person (s.57(1)(b)). Further to the extent that s.51A (exhaustive statement of natural justice hearing rule in relation to the code of procedure for dealing fairly efficiently and quickly with visa applications) did not become operational until 4 July 2002, there is nothing before me to show that there was any breach of the common law rules of natural justice in relation to the making of the decision. The applicant put forward all of his claims. These were considered, and to the extent that the delegate relied on any information, this was either information known to the applicant by way of his having provided this information to the delegate or, particularly, in relation to information relating to the election outcomes and the capacity to move freely around Bangladesh and this was general information such as could be characterised, particularly as the applicant claimed to be active in political affairs in Bangladesh, as information of which he would have been generally aware.
The applicant also contends that the delegate’s decision can be reviewed by the Court under certain circumstances, and puts forward that the Courts have previously reviewed decisions by a delegate in a number of cases. In this regard the applicant makes reference to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 (“Chan Ta Srey”). In that case the issue concerning notification of the delegate’s decision came before the Federal Court in a matter concerning a complaint that the applicant's detention by the Minister for Immigration was not sanctioned by the Act, and was therefore unlawful. The issue about notification in that case clearly arose independently from the issue that is raised before me, that is, the validity of the delegate’s decision and can be distinguished on that basis. In looking at the material before me I cannot see that there is any other complaint by the applicant relating to any other decision or administrative action by the Minister or her delegate. Simply, the applicant has put forward his complaint about the notification of the delegate’s decision as a means of complaint about that decision itself, and not any other decision or action taken by the Minister. In Chan Ta Srey notification of the delegate’s decision (and in that case the complaint concerned s.66(2)(d)(2) of the Act) had “crucial” consequence in that if the applicant was not properly notified then a Bridging Visa, which the applicant had been granted earlier, would not be said to expire, and would therefore continue to entitle him to be treated as a lawful non-citizen. This went directly to the issue of the validity, or otherwise, of his (Immigration) detention. The applicant has put nothing of that nature now, nor is anything of that nature apparent, in the material before me. The applicant may indeed be correct in stating that a delegate’s decision can be reviewed by the Court under certain circumstances, but those certain circumstances, in the sense as they existed in Chan Ta Srey, do not exist in the case before me. Simply, the applicant is seeking to utilise an alleged failure in notification to attack the delegate’s decision.
The applicant also refers to SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No. 1) [2005] FMCA 211 (“SZCTH”) and NAMG vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 8541 (“NAMG”). Dr. Azzi submitted that the applicant is not estopped from “appealing the decision of the delegate” and relies specifically on SZCTH. Both cases however dealt with a situation different, in a relevant particular, to the situation before me. In both those matters before Driver FM, his Honour found that an attack on the decision of the delegate when considered during the course of an application for summary dismissal was not doomed to fail and was not obviously an abuse of process in circumstances where the delegate’s decision had not been reviewed on its merits. In NAMG no review application was filed, and in SZCTH an application for review filed with the Tribunal was filed out of time, and the Tribunal found it had no jurisdiction to consider it. It was clear that in both cases there had been no merits review by the Tribunal, and that the applicants did not appear to have had any real opportunity to challenge the delegate’s decision. This is clearly not the situation in the case before me. The applicant here has had ample opportunity to have tested the delegate’s decision before the Tribunal, an opportunity which he utilised. Further as I have already said, he then had that Tribunal decision (which it must be emphasised was “de novo”) put before a number of Courts. I cannot see that the certain circumstances that he refers to, and as he appears to assert existed in SZCTH and NAMG, in any way exist before me.
Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132 can also be distinguished from the case before me. In that case the Court, while there was some focus on the process used by the first respondent’s employees in searching and apprehending the applicant, it ultimately looked at the Tribunal’s decision and the error that it found in that decision which involved its interpretation and application of a particular condition that attached to the applicant’s visa in that case.
Clearly, given what I have set out above, any failure to “give” notification would not affect the validity of the decision I should just note that while the applicant makes reference to s.66(2) and claims that it was not observed, he has put absolutely nothing before me to show how it was not observed. Nor can I see any such failure independently on the information before me. In relation to s.66(2) of the Act and the notification of the delegate’s decision (set out at CB 28 and CB 29) clearly:
Re: Section 66(2)(a)
Specifies the criterion which the applicant did not satisfy and in relation to which the grant of the visa was refused.
Re: Section 66(2)(b)
This did not apply to the circumstances of the applicant's case
Re: Section 66(2)(c)
The delegate did give written reasons as to why the criterion was not satisfied and these were attached to the letter of notification and are reproduced at CB 30 to CB 37.
Re: Section 66(2)(d)
The applicant did have the right to have the decision reviewed pursuant to Part 7 the Act in that it was a protection visa decision. The letter to the applicant clearly stated that the decision could be reviewed, and gave a time in which the application for review may be made (the issue which was of concern in Chan Ta Srey) and advised that he could apply for the review, and where the application for review could be made.
There is nothing therefore in the material before me to show that the complaint regarding s.66(2) could succeed.
In relation to s.66(1) it is not exactly clear what the applicant’s complaint really seeks to address. The delegate’s decision was made on 16 February 2001 and notified to the applicant by letter dated
16 February 2001, sent to both the applicant, and a copy to his then migration adviser. Both addresses correspond to the addresses provided by the applicant in his application for a protection visa. In relation to the letter sent to the applicant at his mailing address, this appears to have been sent by registered post. The applicant does not now dispute that he actually received notification. To the extent that his complaint can be understood, it appears that the complaint about notification may also relate to the jurisdiction of the delegate to give the decision, but I note in any event that the applicant asserts in his application for review of the delegate’s decision to the Tribunal (CB 38 to CB 41 and in particular at CB 40) that he was advised of the delegate’s decision by letter dated 16 February 2001 and did indeed make his application for review of that decision, and lodged that application, on 6 March 2001.The relief that the applicant ultimately seeks before this Court is discretionary. Even if this matter had been permitted to proceed to a final hearing, I note relevantly the following. The application dated
7 October 2005 which has now come to this Court challenging the delegate’s decision that was made on 7 February 2001, is made well over 4 ½ years later. In this regard I note McHugh J. in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [80]:“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands[60]. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome [61].”
The material before me clearly shows that the applicant sought merits review of the delegate’s decision, and then made repeated attempts before the Federal Magistrates Court, the Federal Court and further, the High Court to challenge the Tribunal's decision. In my view all of this would provide a clear, separate and discretionary reason for refusing the relief sought now. During that time if the applicant had complaints about the delegate’s decision, it was clearly open to him to have raised those complaints before any of the Courts on the numerous occasions that he went before then. The history reveals not only the unwarranted delay in seeking the relief specifically sought now, but in the context of what McHugh J. said above, demonstrates a very clear basis for the refusal of the discretionary relief that he seeks. This is based on his inconsistent conduct, and further conduct which may be seen as amounting to acquiescence in the now alleged invalidity of the delegate’s decision. Clearly, it is inconsistent for the applicant to assert that there was some defect of notification of the delegate’s decision and defect relating to jurisdictional error in the delegate’s decision when no such assertion has been made before the Courts in the preceding 4 ½ years.
In looking at the long history relating to the applicant’s conduct in pursuing his application for a visa to remain in Australia, and taking into account that even with the experience of all the litigation which the applicant has had in challenging the Tribunal’s decision which affirmed the decision in the application currently before me, his application to this Court is in identical formulaic terms to a number of other applications currently seen in this Court challenging the delegate’s decision in circumstances where a subsequent Tribunal decision has been the subject of unsuccessful litigation through the Courts. At the first Court date the applicant was given the opportunity to provide substance to the “formulaic” outline of complaints by way of filing an amended application, or even providing evidence by way of affidavit. While I do appreciate the difficulties faced by applicants from non-English speaking backgrounds in pursuing these matters before the Courts, even with the (albeit late) intervention of Dr. Azzi, this applicant had done very little in pursuing this complaint, and indeed in answering the respondent’s Notice of Motion. Dr. Azzi’s assistance [albeit I understand he was engaged at a late stage] was nonetheless of limited value in explaining or addressing the relevant factors arising from the applicant’s litigation history as set out above. In all the circumstances, in my view, having seemingly exhausted his challenge to the Tribunal's decision, it is open to draw the clear conclusion that the applicant has now struck upon making an application challenging the delegate’s decision which preceded the Tribunal's decision, as a means of extending his stay in Australia. This is by way, at the very least, of obtaining those bridging visas which can derive as an entitlement depending on the existence of judicial review proceedings, irrespective of the merits of those proceedings.
For all the reasons set out above the present application is an abuse of process, and it is appropriate for me to dismiss it summarily. I will make that order sought by the Minister that the application currently before me be dismissed as an abuse of process, and further that it fails to disclose a reasonable cause of action, and with no prospects of success it should not be allowed to go through to a final hearing.
The Minister also seeks an order that the applicant be declared a vexatious litigant pursuant to Rule 13.11(3) of the Federal Magistrates Court Rules 2001 (“the Rules”). Both in the context of characterising the applicant's application, as against his litigation history, as an abuse of process and in the context of considering whether to make such an order, it is relevant to note specifically the following in connection with the applicant's conduct before the Courts in seeking review of the Tribunal's decision to affirm the decision of the delegate which he now brings before me:
1)On 16 February 2001 the applicant was notified of the delegate’s decision.
2)An application for review of the decision was lodged with Tribunal on 6 March 2001.
3)The applicant was invited to a hearing before the Tribunal and while at first he indicated that he would attend, he subsequently advised the Tribunal on the date of the hearing on 5 December 2002, through his migration adviser, that he did not wish to attend the hearing, and asked for the decision to be made on the basis of the information already provided (see CB 65 and CB 43).
4)The Tribunal handed down its decision on 14 January 2003 and on 10 February 2003 the applicant filed an application for judicial review in the Federal Court of Australia (Annexure “D” to the affidavit of Nicola Johnson).
5)On 6 March 2003 a directions hearing was conducted before Registrar Hedge. The applicant did not appear and the matter was adjourned to 20 March 2003.
6)On 20 March 2003 Allsop J. dismissed the application as the applicant again failed to appear at the second directions hearing (see Annexure “E” to the affidavit). I particularly note the comments of Allsop J. at [9] in his judgement:
“The applicant apparently did not attend before the Refugee Review Tribunal. The applicant has failed to appear now at two directions hearings. The applicant may be waiting for his panel adviser to advise him. However the procedures of the Court are designed for the expeditious and fair disposition of matters brought by litigants and are not to be ignored. The applicant has shown no interest in his own case in this Court. I do not see why proceedings in which the applicant has evinced no interest should not be disposed of.”
7)On 1 April 2003 the applicant filed a Notice of Appeal in the Federal Court appealing the orders and Judgement of Allsop J. (see Annexure “F” to the affidavit of Nicola Johnson).
8)At a directions hearing on 30 April 2003 Madgwick J. ordered that the Notice of Appeal be treated as an application for leave to appeal and set down that application for hearing on 15 May 2003.
9)On 12 May 2003 the applicant filed a Notice of Discontinuance in the Federal Court (see Annexure “G” to the affidavit of Nicola Johnson).
10)Nearly 10 months later the applicant filed another application for judicial review of the same Tribunal decision in the Federal Magistrates Court.
11)On 16 July 2004 Raphael FM made orders dismissing the application pursuant to Rule 13.10(c) of the Rules. The proceedings were found to be an abuse of process (see Annexure “K” to the affidavit of Nicola Johnson). His Honour noted that the applicant “did not pursue that application [the earlier application before Allsop J.] with vigour and in fact did not appear at two directions hearings”. Raphael FM also observed at [5]:
“The applicant also provided me to the document entitled applicant’s arguments for competency. I have looked at this document and note with some concern that it appears to be identical to a document which I discussed in SZDFW v Minister for Immigration [2004] FMCA 459, an application of a similar type heard immediately before this one. In my judgement in that case I made some comments about the document which apply equally here so far as the document does not really address the issues in the particular decision of the Tribunal in this case. It is somewhat disconcerting to be faced with two identical documents and two different applicants and leads one to the inevitable conclusion that someone is producing these document for distribution and that they are not the product of the individuals who are appearing before this Court.”
12)On 19 August 2004 the applicant filed an application for leave to appeal in the Federal Court.
13)On 14 September 2004 Her Honour Justice Stone ordered that the application for Leave to Appeal be dismissed and further ordered that the applicant be prevented from filing any further application in relation to the Tribunal decision without leave of the Court (see Annexure “M” to the affidavit of Nicola Johnson). Her Honour noted at [5]-[6]:
“At the hearing the applicant who appeared for himself with the aid of an interpreter was not able to provide any explanation for his delay or to identify any ground on which an appeal from Federal Magistrates decision might be based. His submissions consisted of a plea that the Court give him one more chance and references to the difficulties experienced in acting without legal representation.
Given the history of this matter and the inadequacy of the notice of appeal I have no hesitation in concluding that the application has no prospects of success and that it constitutes an abuse of process. Since the Tribunal handed down its decision on 14 January 2003 the applicant has had ample opportunities to articulate his claims against the Tribunal and as the Federal Magistrate observed the fact that this has not occurred does not seem to be the fault of anyone but himself.”
14)On 30 September 2004 the applicant filed an application for Special Leave to Appeal in the High Court (Annexure “N” to the affidavit of Nicola Johnson). On 26 May 2005 Justices Hayne and Callinan ordered that the applications for special leave to appeal be dismissed (Annexure “O” to the affidavit of Nicola Johnson). Hayne J. observed, as shown in the Transcript of proceedings:
“The applicant is a citizen of Bangladesh who arrived in Australian and applied for a protection visa in September 2000, his application and claim were considered and rejected by the Refugee Review Tribunal. He made a number of assertions of a fear of persecution by reason of his political activities. In the written material that he submitted to the Tribunal he provided very little information regarding his alleged fears and failed to attend the oral hearing which he was invited to attend and at which his claims could have been further investigated. The applicant’s written case in this Court fails to disclose any error of law, jurisdiction error, or want of procedural fairness on the part of the Tribunal, the Federal Magistrate who reviewed his claim or the Federal Court from which he now seek special leave to appeal. His application must be dismissed.”
15)Rule 13.11(3) of the Rules states:
“(3)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) That any proceeding instituted by the vexatious litigant against the person aggrieved may not be continued without the leave of the Court; and
(b) That the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.”
This applicant has clearly, as set out above, repeatedly and persistently brought proceedings against the respondent Minister seeking the judicial review of the decision of the Refugee Review Tribunal which affirmed the decision of the Minister’s delegate, now the subject of the application before me. The applicant sought merits review of the delegate’s decision made well over 4 years ago and then in relation to the Tribunal’s decision of 10 December 2002 (and handed down on
14 June 2003), engaged in bringing the respondent Minister before various Court on five occasions (including to the High Court of Australia). But what is of greater relevance is that having brought the Minister repeatedly before the Courts the applicant has not pursued his applications with any vigour (as evident in the failure to appear, Notice of Discontinuance etc) and has merely “waited” to commence another set of proceedings.He has now brought the Minister to Court for the sixth time, and while I note that the subject of the application for review now is the delegate’s decision, (as opposed to the Tribunal's decision as on the other occasions) the relevant parties remain the same. That is, the applicant and respondent Minister. Further as I have set out above, the outcome ultimately sought by the applicant remains the same, and that is, to obtain a visa to remain in Australia. As I have already set out above, the applicant's application now constitutes an abuse of process, and in part this was based on my view that the review sought of the delegate’s decision was so obviously untenable (in spite of Dr. Azzi’s submissions) that it could not succeed. For the same reasons as set out above, this application is also frivolous and vexatious. In reaching my conclusion above in not allowing the proceedings to continue, and in exercising this discretion, I did consider the underlying public interest that there be finality in litigation, and that the Minister should not be vexed over and over again in what is essentially the same matter.
Further, as I have found above, I drew the inference that the applicant has filed the present application for the collateral purpose of extending his stay in Australia, and while that amounts to an abuse of process it also can be seen in context as being vexatious. I agree for all the reasons set out above with the respondent's submission that proceedings are also vexatious if they are so obviously untenable or manifestly groundless as to be hopeless. It is clear that the circumstances of the proceedings that the applicant seeks to bring now are hopeless, and therefore in all the relevant circumstances vexatious. Having gone through the Federal Court, the Federal Magistrates Court, the Federal Court on appeal and then to the High Court, in circumstances where no reasonable grounds were put forward, as I have set out above, and where the Courts have consistently found the applicant’s proceedings to be without merit, the applicant has now sought to continue this “process” by again bringing proceedings against the respondent Minister. The applicant clearly has habitually and persistently instituted vexatious proceedings, when one takes into account the history set out above, against the respondent Minister. Even now in spite of the lengthy litigation history, the applicant appears to continue the same pattern of behaviour that he established some three years ago before Allsop J. In particular in this regard I note that in spite of orders by a Registrar of this Court the applicant has filed absolutely nothing to support the application and the application consists of mere assertion with no real particularity, other than the limited matters submitted at the hearing (and confirmed in written submissions subsequently) by Dr. Azzi. In all the circumstances as set out above, the Minister is entitled to say “enough is enough”. Nor in my view can the applicant assert that in all of the five years or so in which he has been in Australia that he has not had a “fair go” in relation to his challenge to the refusal of a protection visa.
In all these circumstances it is appropriate that I grant the orders sought by the respondent in this regard. Further, for all of the circumstances which I have set out above, it is in my view justified to agree to the respondent's application that the applicant pay her costs on an indemnity basis, and I am minded to make the order in those terms. It is also appropriate that I make an order prohibiting the applicant from instituting any proceeding against the Minister for Immigration or her delegate or the Tribunal as sought by the Minister. I note in particular for the applicant's benefit that he, of course, may attempt to do so, but first must obtain the leave of the Court, and would need to satisfy the Court that the proceeding that he may attempt to bring at that time are not an abuse of process, and that there is a prima facie ground for the proceeding.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 05 June 2006
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