SZDAL v Minister for Immigration
[2004] FMCA 752
•1 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDAL & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 752 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – RRT decision subject to two previous proceedings in the Federal Court, which were both dismissed – no substance to the present application – application dismissed summarily as disclosing no cause of action. |
| First Applicant: Second Applicant: | SZDAL SZDAM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG755 of 2004 |
| Delivered on: | 1 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 1 November 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The first and second applicants appeared in person
| Solicitors for the Respondent: | Ms R Leahy Sparke Helmore |
INTERLOCUTORY ORDERS
The application be dismissed summarily, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first and second applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG755 of 2004
| SZDAL, SZDAM, SZDAN |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of objection to competency filed on 7 May 2004 and a notice of motion filed 22 July 2004. Both relate to an application for judicial review filed on 17 March 2004. The application for judicial review seeks review of a decision of the Refugee Review Tribunal (“the RRT”) made on 4 September 1998. In addition to the grounds set out in the notice of motion, I permitted the respondent to move on an additional ground that the application for judicial review discloses no course of action.
The relevant background facts and circumstances are set out in the affidavit of Rebecca Kate Leahy made on 5 August 2004. I received that affidavit as evidence for the purposes of today's hearing. A useful summary is contained in written submissions prepared on behalf of the respondent Minister. I adopt paragraphs 1-4 of those written submissions for the purposes of this judgment:
These proceedings arise from an application for judicial review made under s.39B of the Judiciary Act 1903 (Cth), filed in the Federal Magistrates Court on 17 March 2004. The application seeks to review a decision of the RRT made on 4 September 1998 and handed down on 7 September 1998 (“the RRT decision”). The relevant background and litigation history is contained in the chronology appearing at Annexure “A” to the Affidavit of Rebecca Kate Leahy affirmed on 5 August 2004. In addition to that Affidavit and chronology, the respondent relies on the Court Book filed on 10 August 2004.
The respondent moves on ground 1(a) of its notice of motion filed on 22 July 2004 and seeks leave to move on an additional ground for summary dismissal pursuant to the Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth), namely that no reasonable cause of action is disclosed in relation to the proceeding.
Previous proceedings
First application
On 9 October 1998, the applicants filed an application under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) seeking review of the decision of the RRT handed down on 7 September 1998, which is the same decision sought to be reviewed by the applicants in the current proceedings.[1] The application was given Federal Court proceedings number NG1064 of 1998. An amended application was filed on 2 December 1998.[2] On 7 December 1998, Madgwick J dismissed the Applications with costs.[3] The applicants were legally represented at all stages by McDonells Solicitors, who also represented the applicants before the RRT.[4]
Muin & Lie class action
On 1 March 2001, over two years after Magwick J dismissed their first application, the applicants joined the Muin and Lie class action.[5] On 29 May 2003, pursuant to orders made by Gaudron and McHugh JJ, the applicants’ former solicitor, Adrian Joel, filed an application for an order nisi on their behalf in the High Court of Australia, Sydney Office of the Registry.[6] The application was remitted instanter to the Federal Court of Australia, where it was dismissed by Emmett J on 20 February 2004, as it did not disclose an arguable case.[7]
[1] Annexure “C”, Affidavit of Rebecca Kate Leahy affirmed 5 August 2004
[2] Annexure “D”, Affidavit of Rebecca Kate Leahy affirmed 5 August 2004
[3] Annexure “E”, Affidavit of Rebecca Kate Leahy affirmed 5 August 2004
[4] court book, page 43
[5] Annexures “F”, “G” and “H”, Affidavit of Rebecca Kate Leahy affirmed 5 August 2004
[6] Annexure “L”, Affidavit of Rebecca Kate Leahy affirmed 5 August 2004
[7] Annexure “M”, Affidavit of Rebecca Kate Leahy affirmed 5 August 2004
It is apparent that this is the third application for judicial review in relation to the same RRT decision. Both earlier applications were dismissed by the Federal Court. The first was dismissed after a contested hearing on its legal merits. The second was dismissed by His Honour Emmett J on 20 February 2004 as no arguable case was disclosed. The objection to competency depends upon a finding that the decision of the RRT is a privative clause decision and the application of s.477(1A) of the Migration Act. It is not clear to me whether that section which was introduced in 2001 applies to a tribunal decision made in 1998. It may not matter, given that the application before me was made this year, well after s.477(1A) was enacted. Nevertheless, in the absence of any submissions on the point, I have decided to proceed on the assumption, for the purposes of this proceeding, that section 477(1A) does not apply.
Turning to the notice of motion, the mere fact that previous proceedings have been instituted does not mean that the present proceedings are an abuse of process. It would be necessary to identify some further element pointing to an abuse. It is not clear to me on what basis the applicants were able to remain in Australia between 1998 and 2001. Nevertheless, they did remain in Australia and sought to take advantage of the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. They were unsuccessful in that attempt. The present proceeding appears to be an attempt to take advantage of the High Court's decision in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24. The substantial passage of time of over six years since the RRT decision was made would give serious cause for concern if this matter went to a hearing, even if jurisdictional error were identified. Prerogative relief is discretionary. The extreme delay on the part of these applicants on bringing the present proceedings would be a very relevant consideration in the exercise of that discretion.
However, it is not necessary to resolve that issue as I am satisfied that the present application should be dismissed summarily as disclosing no reasonable cause of action. The applicants filed in court by leave today an outline of submissions in support of their judicial review application. It continues to assert the legal merits of their claim based upon the High Court decision in Muin and Lie. That claim has already been dealt with by Emmett J, who has decided that there was no arguable case.
There is nothing in the present application that would lead me to depart from that decision. It does not appear to me that the balance of the present application adds anything to the application instituted in the Federal Court in 1998. The grounds are meaningless in the absence of particulars. A reading of the RRT decision leads me to the view that the present application is doomed to failure.
In the circumstances, the application should be dismissed summarily.
I will so order.
Ms Leahy seeks an order for costs fixed in the sum of $3,000 against the first and second applicants. The third applicant is a child and should not be subject to a costs order. The first applicant has previously been appointed the litigation guardian for the third applicant. I am satisfied that costs in the sum of $3,000 have been reasonably and properly incurred on a party/party basis. A similar costs outcome would be achieved by the application of the Court’s scale of costs. The applicants were concerned that they might need time to pay costs and that they could not presently pay. However, impecuniosity is not a reason for the court to refrain from making a costs order. I will order that the first and second applicants pay the Minister's costs and disbursements of and incidental to the application for judicial review, fixed in the sum of $3,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 November 2004
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