SZCZS v Minister for Immigration
[2004] FMCA 340
•26 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZS v MINISTER FOR IMMIGRATION | [2004] FMCA 340 |
| MIGRATION – Application by respondent Minister for summary dismissal – where RRT decision handed down in 1997 – where applicant lodged an appeal with Federal Court but later consented to its dismissal – where applicant joined High Court Lie class action – where this proceeding remitted to Federal Court and dismissed – where appeal from those orders also dismissed – whether proceedings should be dismissed as an abuse of process – whether proceedings should be dismissed as disclosing no cause of action – whether res judicata finding appropriate even though matter not fully heard. |
Daniel v MIMIA [2004] FCA 21
| Applicant: | SZCZS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 732 of 2004 |
| Delivered on: | 26 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 May 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
The applicant to pay the respondent's costs assessed in the sum of $1,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 732 of 2004
| SZCZS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me today an application by the respondent Minister that these proceedings, which were filed on 16 March 2004, be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules as an abuse of the process of the court. As an alternative, the respondent seeks that the proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action. The respondent also seeks costs.
The history of this matter is that the applicant sought review of a decision of the delegate to refuse him a visa on the basis that he was a refugee and the Tribunal determined to affirm the decision of the delegate. It handed down that decision on 17 October 1997. The applicant then sought review in the Federal Court by way of an application filed on 21 November 1997 and numbered NG 976/97. At that time the applicant had a firm of solicitors acting on his behalf.
On 15 April 1998, the applicant consented to his application being dismissed and to his paying the respondent's costs as taxed or agreed. This agreement was confirmed in an order of Beaumont J of 15 April 1998, entered on 27 April 1998.
On or about 10 June 1999, the applicant became party to the class action S89 of 1999 in the High Court of Australia commenced by Ms Lie. Pursuant to orders made by Gaudron J on 25 November 2002, the applicant filed a draft order nisi in the High Court of Australia on
19 June 2003 seeking prerogative relief in respect of the decision of the Tribunal of 17 October 1997. This proceeding was remitted to the Federal Court on 19 June 2003.
The matter came before Emmett J on 4 December 2003. His Honour dismissed the applicant's order nisi application, with costs, pursuant to order 10 rule 7(2) of the Federal Court Rules. His Honour gave judgment in the matter and at [8] – [9] said:
“ There is nothing on the face of the reasons to indicate any error on the part of the Tribunal and, in the absence of any basis having been advanced by the applicant to indicate some jurisdictional error on the part of the Tribunal, the application, as it presently stands, is doomed to failure.
Having regard to the failure to comply satisfactorily with the directions that I gave on 27 October 2003, I propose to accede to the Minister's application. Accordingly, I propose to order that the application be dismissed and that the applicant pay the Minister's costs.”
On or about 6 February 2004, the applicant filed in the Federal Court an application for leave to appeal against the order of Emmett J. That application was heard on 2 March 2004 by Jacobson J. His Honour also went through the background of the proceedings. He came to the conclusion that the decision of Emmett J was interlocutory, and said at [11]:
“ It seems to me to be plain that this application must be dismissed because Emmett J’s judgment is a discretionary judgment which was given on a matter of practice and procedure. It has been established for more than 50 years that tight rein must be kept on such orders, otherwise there would be disastrous consequences for proper administration of justice.”
His Honour then went on to consider the difficult situation of an applicant in detention before saying at [17]:
“Mr Markus observed that even if I make an order today dismissing the application, the applicant is not estopped from bringing further proceedings if, notwithstanding his failure to obtain legal advice to this point, he does at some stage assert a basis for relief from the court. Whether, as a matter of discretion, this court or another court would entertain such proceedings is not a matter which I need to determine today.”
His Honour also made some comment about the merits. At [18] he said:
“ Finally, I should observe that the applicant put to me that there may be a claim of denial of procedural fairness on the ground that information provided by the government of Pakistan to the department about the position of Christians in Pakistan was not provided to him. However, it is plain that even if there were documents dealing with this question, which were not given to the applicant, he was provided with the substance of the information and that is all that is required to accord the applicant procedural fairness.”
The applicant, no doubt taking comfort from the views expressed by Mr Markus, the filed this application. In it he seeks a further hearing from the Refugee Review Tribunal and that no action be taken to remove him from the country while the decision is proceeding.
The basis or grounds of the application are:
1.The RRT did not give me justice.
2.My claims were overlooked.
3.The Migration Act 1958 was not followed.
4.I am the party of class action Lie.
5.My judiciary application is late. I refer to the recent High Court judgment Plaintiff 157/2001 v Commonwealth of Australia.
6.RRT made the decision in bad faith.
7.I will provide details later.
When the applicant came before me today, I asked him whether he did have anything to say as to why the application should not be dismissed, after hearing from Ms Watson on the part of the respondent. The applicant's response was that he had been given the opportunity of some legal advice under the Minister's scheme, which advice was to be given to him on 1 June 2004. He sought an adjournment. He did not have anything further to say about his actual substantive claim.
It seems to me that this very old decision of the Refugee Review Tribunal has now been the subject of quite enough proceedings. It was dismissed by Emmett J after a full consideration of the application, and some consideration of the decision itself. At that time the applicant had failed to comply with the orders of the court. Emmett J’s decision was reviewed by Jacobson J and, once again, the applicant received a sympathetic and thorough hearing. It is inappropriate that people whose cases have been dismissed by a superior court, should seek to apply to another court, lower in the hierarchy of Federal Courts, to do that which the superior courts have declined to do.
In the absence of very cogent grounds for finding that the original decision was one infected by jurisdictional error (which grounds had not previously been debated with either of the judges of the Federal Court), it would be to my mind, lese-majeste to interfere further and to permit to be heard a case that has now been dismissed twice by the Federal Court (Beaumont J and Emmett J).
I am satisfied that I should follow the decision of Goldberg J in Daniel v MIMIA [2004] FCA 21, and hold that I am entitled to find res judicata even where a matter has not been fully heard but there was a consent order dismissing the proceedings, as there was in the case of the consent orders to which I have previously referred.
I am, therefore, satisfied that to continue with this application would be an abuse of process of the court and will dismiss the application pursuant to Rule 13.10(c) of the Federal Magistrate's Court Rules.
I am sensible of the fact the applicant is detention and will be receiving legal advice very shortly. That legal advice can now be addressed to whether or not the applicant should appeal this decision. I do not think it is within my power to extend time for leave to appeal, but I would hope that provided any appeal is made on grounds that appear to have the support of the legal adviser, the respondent will not object to that application being made somewhat out of time. For my part, I shall do my best to ensure these reasons are provided to the applicant and to the respondent as soon as possible.
I dismiss the application. I order the applicant pay the respondent's costs, which I assess in the sum of $1,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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