SZCZM v Minister for Immigration
[2007] FMCA 1991
•27 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1991 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – previously constituted Tribunal upheld delegate’s decision – affirmed by the Federal Magistrates Court, the Federal Court and the High Court – new application made to a second Tribunal for a review of the same delegate’s decision – application dismissed on the ground that the Tribunal did not have jurisdiction – current application for judicial review of the second Tribunal decision – new application dismissed as incompetent and abuse of process. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZCZM”. |
| Migration Act 1958 (Cth), ss.91X, 414, 476 Federal Magistrates Court Rules2001 (Cth) rr.13.03A, 13.10, 44.12 |
| Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor (1997) 76 FCR 301 Kosi v Minister for Immigration [2003] FMCA 340 NALE v Minister for Immigration [2003] FMCA 366 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 SZCZM v Minister for Immigration [2005] FMCA 66 SZCZM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 679 SZCZM v Minister for Immigration & Anor [2006] FMCA 709 SZCZM v Minister for Immigration & Multicultural Affairs [2006] FCAFC 1432 SZCZM v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 361 SZGMZ v Minister for Immigration [2005] FMCA 1549 Walton v Gardiner (1993) 117 CLR 378 at 393 |
Applicant: | SZCZM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3292 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 27 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Malayalam interpreter |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 24 October 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed at the sum of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3292 of 2007
| SZCZM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant in these proceedings appeared at first Court date directions on 14 November 2007 where the matter was listed for a show cause hearing on 27 November 2007 at 2.15pm. This information was recorded in a set of orders provided to the applicant at the completion of the first Court date hearing. The purpose of today’s hearing was briefly explained to the applicant. At the scheduled hearing time, there was no appearance by the applicant and a grace period of 15 minutes was granted. When that time elapsed and there was still no appearance by the applicant, I indicated that because of the applicant’s extensive litigation history and the nature of the current application to this Court, I would proceed with the hearing under r.13.03A(e) of the Federal Magistrates Court Rules2001 (Cth) (“the Rules”) in the absence of the applicant.
The applicant claims to be a citizen of India and seeks protection in this country on the basis of a well-founded fear of persecution. The applicant states that he was in love with a Muslim girl whose parents opposed the relationship because he is Hindu. The applicant states that the girl’s father was a member of the Communist party in India and had warned him not to continue a relationship with his daughter. Despite this, the relationship continued but, as a consequence, the applicant was assaulted by associates of the girl’s father.
The applicant also made a further unrelated claim that he had asked some friends to open a bank account in a fictitious name and to deposit money into the account. As a reward they would receive a sum of money. The applicant claims that he and a friend were arrested and held in custody pending police investigation in a large fraud matter involving bank staff members.
The applicant arrived in Australia on 26 February 2003 and made an application for a Protection (Class XA) visa on 26 March 2003. A delegate of the first respondent refused to grant a visa on 4 June 2003 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. On 10 February 2004, the Tribunal set aside the delegate’s decision and substituted it with a decision that the protection visa application was not a valid application and could not be considered.
The applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision (proceedings SYG712 of 2004). Federal Magistrate Scarlett dismissed the application on 21 January 2005: SZCZM v Minister for Immigration [2005] FMCA 66. An application for leave to appeal against that decision was made to the Federal Court of Australia (proceedings NSD184 of 2005). On 23 May 2005, Edmonds J refused leave to appeal: SZCZM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 679.
The applicant lodged a new application for a Protection (Class XA) visa on 14 July 2005. On 11 August 2005, delegate of the first respondent refused to grant the applicant a visa (“second delegate’s decision”). On 29 August 2005, the applicant applied for a review of the delegate’s decision with the Tribunal. The second Tribunal handed down its decision on 1 December 2005 affirming the second delegate’s decision not to grant the applicant a Protection visa. The applicant filed an application in the Federal Magistrates Court on 22 December 2005 for judicial review of the second Tribunal’s decision (proceedings SYG3818 of 2005). On 8 May 2006, Scarlett FM dismissed the application: SZCZM v Minister for Immigration & Anor [2006] FMCA 709. The applicant filed a notice of appeal on 29 May 2006 from the judgment of Scarlett FM in the Federal Court (proceedings NSD1028 of 2006). On 10 November 2006, Buchanan J dismissed the appeal: SZCZM v Minister for Immigration & Multicultural Affairs [2006] FCAFC 1432. On 5 December 2006, the applicant filed an application for special leave to appeal in the High Court of Australia (proceedings S433 of 2006). On 1 August 2007, Kirby and Callinan JJ refused the special leave application: SZCZM v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 361.
On 24 August 2007, the applicant lodged with the Tribunal a further application for review of the second delegate’s decision. The third Tribunal handed down its decision on 26 September 2007 dismissing the application on the ground that it did not have jurisdiction to review the second delegate’s decision as it had already discharged its function pursuant to s.414 of the Migration Act 1958 (Cth) (“the Act”).
The applicant then filed an application on 24 October 2007 in the Federal Magistrates Court for judicial review of the second Tribunal’s decision. The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of this Court’s jurisdiction under s.476 of the Act in respect of that Tribunal decision. The first respondent filed a response indicating that it does not admit any jurisdictional error in the decision of the Tribunal. Accordingly, I set the matter down for a hearing under r.44.12 of the Rules.
The application filed on 24 October 2007 contains three grounds of review:
Ground one – the Tribunal exceeds i[t]s jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirements of the Migration Act, 1958.
Ground two – the Refugee Review Tribunal has failed to see that the applicant satisfies all the criteria required for protection visa as stated.
Ground three – The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal to accept a claim be made by the applicant the Tribunal was, in fact, placed to high an onus of proof an applicant and failed to give the applicant the benefit of the doubt.
In support of the application, the applicant filed an affidavit attaching a copy of the Tribunal’s decision but filed no other evidence or written submissions.
Consideration
The Tribunal clearly stated in its decision under the heading “Findings and Reasons” the reasons for finding that it has no jurisdiction in the matter:
The decision of 11 August 2005 is an RRT-reviewable decision. However, the applicant has previously lodged an application for review of the same decision. The Tribunal accepted that application and conducted a review. The Tribunal has therefore already discharged its functions under s. 414 to review the decision. As mentioned earlier, the applicant has unsuccessfully sought judicial review of the Tribunal’s decision.
The applicant has not provided the Tribunal with any explanation for lodging a fresh application for review.
As the Tribunal has already discharged its functions under the Act to review the delegate’s decision of 11 August 2005, it no longer has jurisdiction in relation to that decision.
The Tribunal relied on s.414 of the Act which states:
[s. 414] Refugee Review Tribunal must review decisions
414. (1) Subject to subsection (2), if a valid application is made
under section 412 for review of an RRT-reviewable
decision, the Tribunal must review the decision.
The operation of s.414 of the Act in circumstances where the Tribunal has made and published its decision in respect of an RRT-reviewable decision and a new application is made to the Tribunal to re-open or reconsider that previous substantive decision, was considered in Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor (1997) 76 FCR 301. Justice Goldberg correctly characterised the doctrine of functus officio in the following terms:
…. it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform: R v Moodie; ex parte Mithen (1997) 17 ALR 219, 225; Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219, 225.
I agree with the written submissions of first respondent that the second Tribunal could not exercise any of its statutory obligations under Division 4 of Part 7 of the Act to review the delegate’s decision for a second time and therefore did not “constructively failed to exercise its jurisdiction”.
Although there have been substantial amendments to the Act since Jayasinghe, s.414 remains unchanged. Most recently, Moore J stated in SZASP v Minister for Immigration & Citizenship [2007] FCA 771 at [4]:
4. It is necessary to first say something about the applicant's attempt to seek a second review of the delegate's decision in the Tribunal. The Tribunal's conclusion that it no longer had jurisdiction to review the delegate's decision, having already discharged its functions under the Act to review the delegate's decision, was correct: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30], Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7], and Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301. The Tribunal was also correct in finding that changed circumstances did not provide any legal basis for undertaking a second review. The avenue provided by the Act to take into account changed circumstances, at least potentially, is the Minister's power to permit lodgement of a further protection visa application under s 48B of the Act.
In light of the litigation history in this matter set out at [5] to [8] above, this application is an abuse of process. Rule 13.10 of the Rules enables the Court to dismiss a proceeding summarily if it is frivolous or vexatious or otherwise an abuse of process. A current application filed in this Court is plainly an attempt to litigate a case of when you dispose of and should be dismissed as an abuse of process: Walton v Gardiner (1993) 117 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ:
…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. 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. 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…
The reasoning of Smith FM in SZGMZ v Minister for Immigration [2005] FMCA 1549 at [22]-[26] clearly addresses the reasons, as His Honour put it, why an application such as this is an abuse of process and has no prospects of success in obtaining the relief it seeks. This application is a persistent attempt to bring an unmeritorious application to the Court. I am also guided by the decision of Driver FM in NALE v Minister for Immigration [2003] FMCA 366 where the reinvigoration of proceedings may have been pursued to extend the applicant’s stay in this country. Reference is also made in NALE v Minister for Immigration to Kosi v Minister for Immigration [2003] FMCA 340 at [18] which stated:
… It would be an abuse of the Court’s process to file an application for review simply for the purpose of extending the period of one’s stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances there is potential for the Court’s process to be abused by an applicant whose only purpose is to take advantage of that delay…
Conclusion
In the circumstances, I am satisfied that the Tribunal was correct in its decision and applied the correct interpretation of the law. It is unnecessary to address the grounds of review raised by the applicant as they are not directed to the issues within the Tribunal decision but appear to address issues of merit related to the protection visa application. The application should be dismissed with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 29 November 2007
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16
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