SZCWW v Minister for Immigration

[2008] FMCA 415

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCWW v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 415

MIGRATION – Application for summary dismissal – abuse of process – vexatious – application had no reasonable prospects of success – application dismissed.

Migration Act 1958, ss.48A, 48B
Federal Magistrates Court Rules 2001, r.13.10

Walton v Gardener (1993) 177 CLR 378
Applicant A321 of 2002 v The Minister for Immigration [2004] FCA 306
SZBJM v The Minister for Immigration [2004] FCA 404

Applicant: SZCWW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3765 of 2007

Judgment of: Nicholls FM

Hearing date: 28 March 2008

Date of Last Submission: 28 March 2008

Delivered at: Sydney

Delivered on: 28 March 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 7 December 2007 is dismissed pursuant to rule 13.10(a), (b) and (c) of the Federal Magistrate Court Rules.

2. The applicant pay the first respondent’s costs set in the amount of $1,750.

3. The applicant is not permitted to file any further proceedings in this Court in relation to the decision of the Refugee Review Tribunal of 16 October 1998 without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3765 of 2007

SZCWW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me an application made by the applicant on 7 December 2007 seeking review of the decision of the Refugee Review Tribunal made on 16 October 1998. The Minister has come before the Court, having given proper and adequate notice to the applicant, seeking dismissal of this application pursuant to r.13.10(c) and/or r.13.10(b) and/or r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). That is, the Minister seeks that this Court dismiss the application summarily, either because the application does not reveal any reasonable prospect of successfully prosecuting the claims made by the applicant, or the claims made by the applicant in the proceedings are frivolous or vexatious, or that the application is otherwise an abuse of the process of the Court.

2. I have in evidence before me the affidavit of the applicant made on 6 December 2007, the two affidavits by Richard John Baird, solicitor, in the employ of the first respondent’s solicitors made respectively on 18 December 2007 and 14 March 2008 with annexures. 

3. The applicant appeared in person before the Court.  He was assisted by an interpreter in the Bengali language. Mr Baird appeared for the first respondent.

4. The Minister took no objection to paragraphs 1 to11 of the applicant’s affidavit and these paragraphs were read into evidence before the Court.  The Minister, however, did take objection to paragraphs 12 to 16 inclusive on the basis that they were not in the proper form as to the facts deposed therein. I agree, but nonetheless determine that the matters stated in those paragraphs be taken as submissions made before the Court. There is no objection to the affidavits of Mr Baird and, with annexures, they are read into evidence before the Court.

5. The material before the Court reveals that the applicant came to Australia and applied for protection in Australia and that, ultimately, his application was refused.  He sought review by the Refugee Review Tribunal and this application was lodged on 22 July 1997. The Tribunal ultimately refused the applicant’s application and affirmed the decision made by the Minister’s delegate to refuse protection to the applicant.

6. Both the material provided by the applicant himself and the material provided on behalf of the first respondent reveals that the applicant joined proceedings before the High Court known as the “Nguyen v Lee class action,” and that, ultimately, those proceedings were resolved. It also reveals that, as the applicant himself has put before the Court in paragraph 10 of his affidavit, he was given advice by his then solicitor by letter dated 21 February 2004, and that the application made on his behalf to the High Court seeking to challenge the Tribunal’s decision was ultimately resolved in the Federal Court. This was not in his favour, but he was advised that he may be able to make a further Court application to the Federal Magistrates Court by 19 March 2004.

7. The applicant’s affidavit is silent on what he did in relation to the advice that he received. It states that he has now come to this Court seeking an extension of time in which to file and serve an application to review the Tribunal’s decision.  With reference to what is plainly set out in the affidavits of Mr Baird, the applicant’s affidavit is silent on this, having already previously filed an application in this Court on 8 March 2004. 

8. That application was considered following a full hearing by Emmett FM.  It is silent on the applicant having appealed her Honour’s judgment and orders before the Federal Court and that Downes J dismissed the applicant’s appeal. It is also silent on the applicant having applied to the High Court of Australia on 13 March 2007 for special leave to appeal from the judgment of Downes J.  I note reference to what I have just said regarding the affidavit of Mr Baird of 18 December 2007, and the relevant references to exhibit RB1 to that affidavit. For the sake of completeness, I note, however, that the applicant has notified the Court of these other court proceedings in his application made to this Court now.

9. Nonetheless, what the material reveals, as Mr Baird submitted to this Court, is that the applicant has already exercised his opportunity of seeking judicial review of the Tribunal’s decision before this Court on appeal to the Federal Court, and even seeking special leave to go before the High Court of Australia.

10. Mr Baird submitted today that the applicant’s participation in the “Nguyen v Lee class action” does not have any bearing on the proceedings before the Court, other than explaining the time between the Tribunal’s decision and the date in 2004, when the applicant first filed  his application to this Court.  I agree with Mr Baird.  I note Mr Baird’s reference in support of paragraph 2 of what Downes J said in his judgment (at page 21 of RB1). That is, with reference to the Nguyen v Lee proceedings before the High Court, and the subsequent remittal to the Federal Court of Australia, on the occasion before His Honour, no issue estoppel in relation to the applicant’s application arose at that time.

11. Any plain reading of the judgments that have been put before the Court reveals that, as Mr Baird correctly submitted, the applicant’s complaints about the Tribunal’s decision were fully considered and were fully reviewed by the Federal Magistrates Court.  That judgment and the subsequent orders were made after a hearing of the substantive complaints put forward by the applicant, and the appeal before the Federal Court was therefore an appeal of judgment, and orders arrived at, after the applicant’s complaints had received a substantial hearing.

12. Mr Baird submitted that, based those on those facts and once special leave was refused by the High Court in relation to an appeal from Downes’ J judgment, when viewed in that light, the applicant’s current application to this Court is an abuse of process, and that it was also either frivolous or vexatious. 

13. The applicant came to the hearing before the Court and confirmed that he understood the matter for consideration before the Court. I say that in context of his having been given proper and reasonable notice of the Minister’s application for summary dismissal.  I note, in that regard, that the applicant had previously appeared on 12 March 2008 where he was put on notice of the Minister’s intention.  Despite that, the applicant stated today that he had nothing new to say to the Court.  He stated that whatever decision had been made by the Tribunal, that the Tribunal had not made proper inquiries, that the Tribunal did not trust his words at all, and that he was not allowed to give further submissions to the Tribunal.  When I pointed out to the applicant that he had already sought review of the Tribunal’s decision, before the relevant Federal Courts, his response was that he wanted a proper judgment and, ultimately and finally, stated that the situation in his home country was not so good that he could return.

14. I note that r.13.10 of the Rules of this Court does enable this Court to dismiss a proceeding summarily if no reasonable cause of action is disclosed, if it is frivolous or vexatious, or otherwise an abuse of process. In particular, and for the applicant’s benefit, I refer to what was said by the then Mason CJ and Dean and Dawson JJ of the High Court in the matter of Walton v Gardener (1993) 177 CLR 378. I refer to this so that the applicant hopefully can better understand the nature of what he is seeking to do now before this Court.

15. Their Honours said in that case [at 23]:

    The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail ((22) See, e.g., Metropolitan Bank v. Pooley (1885) 10 App Cas 210, at pp 220-221; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125, at pp 128-130.). Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them ((23) See, generally, Voth v. Manildra Flour Mills Pty. Ltd. [1990] HCA 55; (1990) 171 CLR 538.). Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”

16. I note also that Wilcox J in the matter of Applicant A321 of 2002 v The Minister for Immigration [2004] FCA 306, a matter where His Honour found in circumstances somewhat similar to the circumstances before the Court today that the doctrine of res judicata applied, but His Honour went onto observe the following [at 19] :

    “If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle.”

17. But the important part for today’s purposes is what His Honour then said:

    “If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner …”

18. And in a similar vein, I note what was said by Madgwick J in the matter of SZBJM v The Minister for Immigration [2004] FCA 404 (“SZBJM”). In particular, at paragraphs [29] and [30] of His Honour’s judgment:

    “Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way, with legal advice, to a Full Court of this Court, and thereafter, it seems, without such advice to the High Court, it is high time that all this litigation was put to an end.

    The proceedings, being groundless on their face, are an abuse of process. The only matter that detained me at all was the suggestion that the Tribunal Member may not have considered a question that could be relevant to the reasonably foreseeable future in judging whether the appellant was liable to face a risk of persecution, namely whether there might be relevant ‘socio political and ethnic changes’ in his home country. A reading of the Tribunal’s reasons for decision, however, shows that the appellant urged no such consideration upon the Tribunal and there was no requirement that the Tribunal should pluck that subject out of thin air and consider it.”

19. I note further that in her judgment, Emmett FM, as I said earlier, after a final hearing of the applicant’s application complaining about the Tribunal decision, found at paragraph 58 of Her Honour’s judgment that the Tribunal decision was: “not affected by jurisdictional error.”

20. This judgment was the subject of an appeal to the Federal Court acting in its appellate capacity and the appeal was dismissed.  For the applicant’s application before the Court to succeed, the applicant would at the very least need to show, or the Court would otherwise need to discern, jurisdictional error in the Tribunal’s decision.  For the applicant’s benefit, I say that that is the relevant state of the law that applies to applications of this type.

21. A Federal Magistrate has already determined the Tribunal decision was not affected by jurisdictional error.  Given that the appeal against that judgment was unsuccessful, what I am left with today is that a Federal Court, acting in its appellate jurisdiction from this Court, has endorsed that finding that there is no jurisdictional error in the Tribunal decision.  I take the view that I am bound by that.  I find, therefore, that the Minister’s application that this matter be dismissed (at least as revealing that the applicant’s claim for relief has no reasonable prospect of success) is made out for two reasons.

22. The first is that the applicant has already litigated the complaints which he now seeks to make about the Tribunal decision, and has already litigated those before this Court, before the Federal Court, and has even sought to go to the High Court.  On his own statement to the Court, the applicant has now come before the Court with nothing new to say. 

23. In any event, any plain reading of the grounds of the application that he has now sought to put before this Court reveal, in effect, a claim of denial of natural justice or failure of procedural fairness on the part of the Tribunal, the issues which were considered by Emmett FM, and by Downes J previously.

24. Secondly, I take the view that there are no reasonable prospects of success of the application for the reason that it has already been conclusively determined that the Tribunal’s decision is not affected by jurisdictional error, in a judgment that is binding on me To allow, therefore, the applicant’s application to proceed any further would be a futile exercise, as the applicant would have no reasonable prospect of successfully prosecuting his claims.

25. I also find that the proceedings before the Court are an abuse of the process of this Court.  I agree with submissions made by Mr Baird that the evidence put before the Court relevantly reveals that the applicant’s application is an abuse of the processes of this Court, in light of what is understood by that term with guidance from, and in light of, the authorities to which I have already referred.

26. As Madgwick J said in SZBJM (at [29]), in circumstances where an applicant has litigated his way all the way to the High Court, “it is high time that all this litigation [is] put to an end.” It is the case that the Minister should not be vexed by having to respond to a further application in relation to a matter which has already been disposed of by earlier proceedings.

27. In summary, all of the Minister’s bases for summary dismissal are, in my view, made out on what has been put before the Court today. As I said to the applicant, he has had his fair go before the relevant Federal Courts of Australia.  His matter has been fully considered by the relevant judicial officers and the fact that he still remains, or states to be, aggrieved by the Tribunal’s decision, does not justify his seeking to, in effect, start the judicial review process from the beginning for a second time.

28. I say this particularly in circumstances where the applicant has come before the Court and has said that he had nothing new to say.  This application does not have reasonable prospect of success. As I have already said, it is in fact futile to proceed any further in light of what has already occurred in this Court, the Federal Court and the High Court previously, and for the reasons already provided, it is vexatious and an abuse of the processes of this Court. For those reasons, I will make the orders sought by the Minister. 

29. I should just note that Mr Baird very fairly referred the Court to ss.48A and 48B of the Migration Act in relation to the applicant’s statement that the situation in his home country is “not that good,” such that he can return.  Mr Baird properly, in my view, raised the reference to those parts of the Migration Act which would enable an applicant to seek the intervention of the Minister in allowing a second application for a protection visa to be made where circumstance in the home country had changed.  But plainly, this is not a matter which has relevance to the proceedings which the applicant initiated in this Court on 7 December 2007 and is a matter for the applicant and possibly for the Minister for Immigration to consider at some time in the future.

30. The first respondent has sought costs in the amount of $1,750. The applicant, despite opportunity, has not put before the Court any reason for not making such an order, nor can I otherwise discern any such reason that would argue against the making of such an order, so I am minded to make that order. 

31. As to the amount, I note that the relevant schedule of the Rules of this Court provide for an amount of $2,500 that the Minister could have sought in proceedings of this type. I note that the Minister seeks an amount considerably less than that amount.  Notwithstanding that I take the view that what is set out in the relevant schedule to the Rules is not binding on this Court, it is however a useful guide in determining what this Court is required to consider, and that is, the reasonableness of the amount that is being sought in all the circumstances.  With reference to the work that has been done by the Minister’s legal representatives, I find that the amount sought is a reasonable amount and I will make the order. 

32. Given that I have found that the current application is an abuse of process, it is in my view appropriate that an order be made that the applicant at least seeks leave of this Court before he makes any attempt to file any further application complaining about the same Tribunal decision. I am also satisfied that it is appropriate to make such an order because the applicant has come before the Court today with nothing new.  The applicant has exhausted the judicial review avenues available to him in relation to the Tribunal decision and, with nothing new to say, has simply ignored what has already been said by the three relevant Federal Courts in relation to his complaints about the Tribunal decision.

33. Having also found that the Minister should not be vexed with further applications in relation to the same Tribunal decision, it is therefore appropriate that I make this order seeking to limit the applicant’s filing of further applications at least without first seeking leave of the Court. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy   

Date:  11 April 2008