SZCZS v Minister for Immigration - [2005] FMCA 1797

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCZS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1797

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of judicial review application as vexatious and an abuse of process – repeated earlier proceedings brought in respect of the same decision and an earlier decision of the Minister’s delegate – earlier proceedings all terminated at an interlocutory stage.

Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)
High Court Rules
Judiciary Act 1903 (Cth), s.44

VWZG v Minister for Immigration [2005] FCA 1018
Walton v Gardiner (1992-1993) 177 CLR 378

Applicant:

SZCZS

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1958 of 2005

Judgment of:

Driver FM

Hearing date:

5 December 2005

Delivered at:

Sydney

Delivered on:

5 December 2005

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Mr A Markus
Australian Government Solicitor

INTERLOCUTORY ORDERS

The judicial review application is dismissed summarily, pursuant to rules 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by this applicant to review the decision of the second respondent is to be accepted for filing in this Court, except by leave of the Court.
No application by this applicant to review the decision of the delegate of the first respondent which was the subject of the decision by the second respondent is to be accepted for filing in this Court, except by leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1958 of 2005

SZCZS

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a motion of which notice was given on 29 August 2005. The Minister seeks orders for the summary dismissal of a judicial review application as an abuse of process. The judicial review application was filed on 25 July 2005 in respect of a decision of the Refugee Review Tribunal (“the RRT”) made on 17 October 1997. There have been numerous earlier attempts at judicial review of the same RRT decision. In light of the litigation history of this applicant the Minister also seeks orders that no further application to review the same decision be accepted for filing except by leave of the Court. The Minister also seeks an order for costs on an indemnity basis. The Minister's motion is supported by the affidavit of Kristy Lee Alexander made on 26 August 2005. I received that affidavit as evidence. Mr Markus, for the Minister, also made written and oral submissions.
The lamentable litigation history of this applicant is detailed in the Minister's written submissions. I adopt as background paragraphs 4-24 of those written submissions:
The applicant is a citizen of Pakistan who arrived in Australia on 11 April 1990. On 3 August 1994 he lodged an application for refugee status. In short, the applicant claimed to fear persecution on the basis of his religion, Christianity. He detailed a number of occasions where he or his community had suffered some form of discrimination.
On 9 January 1996 a delegate of the first respondent refused to grant the applicant a protection visa. On 18 January 1996 the applicant sought review of the delegate’s decision by the RRT.
The RRT made its decision on 17 October 1997. The RRT accepted the applicant’s claim of discrimination as consistent with independent reports of the situation of Christians in Pakistan. It also accepted that the Pakistani government had legislated to protect religious minorities, including Christians, and that the Pakistani government had acted promptly in dealing with the use of the blasphemy laws against individuals and a serious outbreak of sectarian violence aimed at Christians. The RRT found that, despite discrimination against Christians, the applicant had been able to complete a high school education and undertake a Diploma of Commerce and that he was in full time employment until his departure, on a visitor visa, for Australia.
The RRT also considered that there was no economic discrimination against Christians per se in Pakistan. The RRT considered the applicant had successfully overcome possible discrimination in the two main areas in which it was practised and that the applicant had achieved a higher level of education than most of his fellow countrymen. The RRT therefore found that, while there may be evidence of some discrimination against Christians, the applicant had not been subjected to personal discrimination in any meaningful way.
Previous proceedings
The applicant’s litigation history is set out in the affidavit of Kristy Lee Alexander sworn on 26 August 2005 and is, for ease of reference, summarised below.
On 21 November 1997 an application for an order of review was filed on behalf of the applicant in the New South Wales District Registry of the Federal Court of Australia (“the Federal Court”). The application sought review of a decision of the RRT dated 17 October 1997.[1]
[1] Annexure B to the Affidavit of Kristy Lee Alexander
On 14 April 1998 Beaumont J dismissed the application by consent with costs.[2]
[2] Annexure C to the Affidavit of Kristy Lee Alexander
On or around 10 June 1999 the applicant became a party to a proceeding S89 of 1999 in the High Court of Australia commenced by Ms Lie as representative of a number of plaintiffs including the applicant.
Pursuant to orders made by Gaudron J on 25 November 2002 in S89 of 1999, the applicant filed a draft order nisi in the High Court of Australia on 19 June 2003 seeking prerogative writ relief in respect of the decision of the RRT.[3] Pursuant to Gaudron J’s orders of 25 November 2003, the application was remitted instanter to the Federal Court of Australia in accordance with the usual terms of remitter pursuant to s.44 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).
[3] Annexure D to the Affidavit of Kristy Lee Alexander
On 4 December 2003 Emmett J dismissed the applicant’s order nisi application with costs pursuant to O10, r7(2) of the Federal Court Rules.[4]
[4] Annexure E to the Affidavit of Kristy Lee Alexander
On 6 February 2004 the applicant filed an application for leave to appeal from Emmett J’s decision.[5]
[5] Annexure F to the Affidavit of Kristy Lee Alexander
On 2 March 2004 Jacobson J dismissed the application for leave to appeal with costs.[6]
On 18 March 2004 an application under s.39B of the Judiciary Act was filed by the applicant in this court seeking review of the same decision of the RRT dated 17 October 1997.[7]
On 26 May 2004 Raphael FM dismissed the application pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) as an abuse of process of the Court.[8]
On 16 June 2004 the applicant filed a Notice of Appeal from Raphael FM’s judgment in the Federal Court of Australia.[9]
On 14 July 2004 Whitlam J dismissed the appeal as incompetent.[10]
On 6 August 2004 the applicant filed an application for special leave to appeal from the judgment of Whitlam J in the High Court of Australia.[11]
On 7 February 2005 the applicant’s application for special leave to appeal was deemed to have been abandoned pursuant to Rule 41.13.1 of the High Court Rules.[12]
On 28 February 2005 the applicant filed another application for special leave to appeal from the judgment of Whitlam J in the High Court of Australia.[13]
On 16 June 2005 Gleeson CJ and Gummow J dismissed the application for special leave to appeal.[14]
On 25 July 2005 the applicant filed a further application under s.39B of the Judiciary Act in this court seeking review of the same decision of the Tribunal dated 17 October 1997.
[6] Annexure G to the Affidavit of Kristy Lee Alexander
[7] Annexure H to the Affidavit of Kristy Lee Alexander
[8] Annexure I to the Affidavit of Kristy Lee Alexander
[9] Annexure J to the Affidavit of Kristy Lee Alexander
[10] Annexure K to the Affidavit of Kristy Lee Alexander
[11] Annexure L to the Affidavit of Kristy Lee Alexander
[12] Annexure M to the Affidavit of Kristy Lee Alexander
[13] Annexure N to the Affidavit of Kristy Lee Alexander
[14] Annexure O to the Affidavit of Kristy Lee Alexander
I accept the evidence of Ms Alexander detailing the previous proceedings.
I have considered whether I have any jurisdiction in the circumstances to even entertain the present judicial review application. I find that I do. In none of the earlier proceedings was there a conclusive finding that the decision of the RRT was a privative clause decision. In fact I doubt that there could have been, given that the decision was made some years before the notion of privative clause decisions was introduced into the Migration Act.
In his decision made on 4 December 2003 at paragraph 8 Emmett J found that on the face of the reasons for decision of the RRT and in the absence of anything being advanced to indicate any jurisdictional error, the application then before him was doomed to failure. His Honour's decision, however, was an interlocutory one. I do not consider myself bound by it. In addition, although the Minister's submission raised issues of res judicata and Anshun estoppel, I doubt that it is open to me to summarily dismiss the present application on those bases. In saying so, I take into account the significant changes in the law that have occurred since the applicant's first proceedings were instituted in 1997. I also take into account the interlocutory nature of the proceedings instituted by him since then.
It is nevertheless open to me to deal with the present review application as an abuse of process. This is probably the clearest case of an abuse of process that it has been my misfortune to see. I agree with and adopt paragraphs 33-36 of the Minister's written submissions in relation to abuse of process:
It is the first respondent’s submission that even if the circumstances do not give rise to res judicata or Anshun estoppel, the proceedings should nonetheless be dismissed as an abuse of the process of the Court.
Rule 13.10(c) of the Federal Magistrates Court Rules deals with dismissal of a proceeding or claim for relief if that proceeding or claim is an abuse of process of the Court.
In Walton v Gardiner (1992-1993) 177 CLR 378 at 392 - 393 Mason CJ, Deane and Dawson JJ said:
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. … 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 jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".
In the first respondent’s submission, that the present proceedings amount to an abuse of process because:
·the repeated bringing of applications for judicial review of the same tribunal decision is unjustifiable, vexatious and brings the administration of justice into disrepute;
·there is an underlying public interest in the finality of litigation;
·the current application for judicial review is devoid of particulars, and fails to disclose any arguable basis; and
·having regard to the applicant’s litigation history, the court may infer that the applicant has brought this application for the collateral purpose of extending the period of his stay in this country.[15]
[15] See VWZG v Minister for Immigration [2005] FCA 1018 per Weinberg J at [14].
In my view, the present judicial review application is also frivolous and vexatious. The judicial review application is a travesty. It follows a template form with which the Court is depressingly familiar. Previous judicial review applications have sought to argue every conceivable argument that could have been raised. By reason of the conduct of those proceedings by the applicant, the courts did not deal with his previous applications on a final basis, either because of summary dismissal or discontinuance.
The circumstances of the litigation history of this applicant clearly point, in my view, to the courts’ process being abused in order to maximise the period of time the applicant spends in Australia. I cannot believe that the applicant has any genuine belief in the grounds advanced in his present application. The Minister should not be continuously vexed by applications of this nature.
I will dismiss the judicial review application summarily, pursuant to rules 13.10(b) and (c) of the Federal Magistrates Court Rules. I will also order that no further application by this applicant to review the decision of the second respondent be accepted by filing in this Court except by leave of the Court.
I note also that in the individual proceedings instituted by the applicant in the High Court and remitted to the Federal Court he also attempted to review the decision of the Minister's delegate. No further attempt should be permitted, especially as since the commencement of the Migration Litigation Reform Act 2005 (Cth) on 1 December 2005 no such application could be entertained by this Court.
I will further order that no application by this applicant to review the decision of the delegate of the first respondent which was the subject of the decision by the second respondent is to be accepted for filing in this Court, except by leave of the Court.
As to costs, the applicant should pay costs on an indemnity basis. The Minister's actual costs in respect of the present judicial review application are $2,500. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $2,500.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 14 December 2005