SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1650

FEDERAL COURT OF AUSTRALIA

SZCXD v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1650

SZCXD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1744 of 2004

WILCOX J
9 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1744 of 2004

BETWEEN:	SZCXD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	9 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The proceeding be dismissed.

2.The applicant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1744 of 2004

BETWEEN:	SZCXD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	9 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This application was filed on 8 March 2004 in the Federal Magistrates Court of Australia. The applicant sought orders under s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) and s 23 of the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’) in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 11 May 2000. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refusing to grant to the applicant a protection visa.

2. Driver FM transferred the matter to this Court because he thought it was arguable that what the applicant was really seeking was an extension of time to appeal against a decision of Emmett J made on 20 February 2004, dismissing an application by the applicant for a draft order nisi.

3. In order to understand the situation, it is necessary to refer briefly to the history of the matter.  This is conveniently summarised in the reasons for decision of Driver FM given on 1 November 2004.  It appears the applicant arrived in Australia on 11 July 1998.  About one month later, he applied for a protection visa.  This was refused by a delegate of the Minister on 14 October 1998.  On 9 November 1998, the applicant applied to the Tribunal for review of the delegate's decision.  However, as indicated, on 11 May 2000, the Tribunal affirmed the delegate's decision.

4. The applicant promptly lodged an application for judicial review in this Court.  That application came before Lindgren J for directions on 2 August 2000.  However, the applicant did not attend that hearing.  Accordingly, his Honour ordered the applicant to file and serve an amended application with particulars and adjourned the matter to his directions list on 22 August 2000.

5. The applicant attended the second directions hearing on 22 August 2000.  However, he had not complied with his Honour's orders.  After discussion, his Honour ordered that the application be dismissed for failure to comply with the orders.  His Honour allowed three weeks for the applicant to file a motion to set aside the order of dismissal.  The applicant did not take advantage of that leave.

6. On 22 February 2001, the applicant was joined as a member of a class action brought in the High Court of Australia.  On 25 November 2002, Gaudron J made orders disbanding the class action.

7. The applicant’s case was subsequently remitted to this Court.  It was listed for directions on 9 February 2004.  On 20 February 2004, Emmett J heard and dismissed an application for a draft order nisi. 

8. The applicant did not apply for leave to appeal against that order.  Instead, he commenced the present proceeding on 8 March 2004 in the Federal Magistrates Court.

9. On 7 July 2004, the respondent filed a notice of motion for summary dismissal on the ground that the proceeding was an abuse of process.  The motion was supported, a few days later, by an affidavit setting out the history of the applicant’s litigation.  The motion came before Driver FM on 1 November 2004 when his Honour made an order transferring the matter to this Court.

10. On the face of the application, as I have indicated, it is an application for relief under s 39B of the Judiciary Act. The reference to s 23 of the FCA Act adds nothing. That is not a separate head of jurisdiction.

11. Considered as an application under s 39B of the Judiciary Act, it is immediately obvious that the application seeks to replicate the proceeding that was commenced in the High Court and ultimately dismissed on remittal by Emmett J. It is clearly an abuse of process for a person to attempt to re-litigate the same matter by reference to the same cause of action.

12. Driver FM thought it might be possible to regard the application as being for an extension of time to appeal against the decision of Emmett J.  His basis for that view was that the applicant's affidavit referred to a desire to obtain an extension of time.  If I were to treat the application as one for extension of time, it would be necessary for me to be persuaded that there was an arguable case that Emmett J erred in refusing to grant an order nisi.  For this to happen, I would have to identify an arguable basis for the contention that the Tribunal's decision was infected by jurisdictional error.

13. Nothing has been put before me to suggest this was the case.  The applicant's affidavit does not suggest there was a jurisdictional error.  It would not be a correct exercise of the Court's discretionary power for me to extend time, in effect, to run an appeal against a decision the correctness of which no arguable case has been identified. 

14. Accordingly, I think the respondent's contention that the proceeding is an abuse of process is correct. 

15. The respondent's notice of motion refers to the relevant rule in the Federal Magistrates Court Rules.  The corresponding rule in the Federal Court Rules is Order 20 rule 2(1).  That rule provides as follows:

    ‘Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:

    …

    (c)       the proceeding is an abuse of the process of the Court;

    the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.’

16. It is appropriate for me to exercise that power.  This is a case where the proceeding is an abuse of the process of the Court. 

17. The correct order is that the proceeding be dismissed.  I so order.  I further order that the applicant pay the respondent's costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            20 December 2004

The Applicant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Ms B Rayment, Sparke Helmore
Date of Hearing:	9 December 2004
Date of Judgment:	9 December 2004