SZDCJ v Minister for Immigration

[2004] FMCA 1050

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDCJ v MINISTER FOR IMMIGRATION [2004] FMCA 1050

MIGRATION – Application for summary dismissal – where matter was remitted to court following an appeal – where court gives the matter a full rehearing – whether conduct of applicant constitutes an abuse of process – where applicant’s claims have never been heard previously.

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant: SZDCJ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG850 of 2004

Delivered on: 20 December 2004

Delivered at: Sydney

Hearing date: 20 December 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Order that the applicant file and serve an amended application, which sets out clearly and provides full particulars of each and every jurisdictional error alleged to have been committed by the Tribunal, on or before 18 February 2005.

2. In the event that the applicant fails to comply with order 1 above the application shall stand dismissed pursuant to Part 13, Rule 13.03(2)(b) of the Federal Magistrates Court Rules and the applicant shall pay the respondent's costs assessed in the sum of $500.

3. If the applicant complies with order 1 hereof the matter shall be fixed for hearing by the Registrar on the first available date after 19 February 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG850 of 2004

SZDCJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application by the respondent Minister initially filed on 30 June 2004 that the application for judicial review filed by the applicant on 22 March 2004 be dismissed on the grounds that:

   a)Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.

   (b)Pursuant to part 13 Rule 13.03(2)(b) of the Federal Magistrates Court Rules, the applicant has failed to comply with an order of the Court made on 30 April 2004 in failing to file and serve an amended application giving complete particulars of each ground of review by 11 June 2004.

2. The applicant also sought an order in the following terms:

   No further application by the applicant to review the decision of the Refugee Review Tribunal dated 10 November 2000 to be accepted for filing except with leave of the Court.

3. When the applicant received the decision of the Refugee Review Tribunal she commenced proceedings within thirteen days in the Federal Court.  Those proceedings were numbered N1258 of 2000.  The matter was listed for hearing before Beaumont J on 1 February 2001.  But shortly before that time the applicant decided to join what is now known as the Muin and Lie class action (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30). On 31 January 2001, the day before the hearing, she filed a Notice of Discontinuance of the Federal Court proceedings. On 16 February 2001 she officially joined the Muin and Lie class action in the High Court.

4. On 25 November 2002 Gaudron J gave leave to any person named in the schedule to the statement of claim to the class action to file an individual application seeking an order nisi on or before 1 June 2003.  On 16 June 2003 McHugh J ordered an extension of time for such an application to be filed to 20 June 2003.  The applicant did not comply with that timetable.  She tells me today that she was in the country when the decisions were made and I note that in her application to this court she says she was dropped by her then solicitor.

5. Instead of proceeding in the High Court the applicant on 22 March 2004 filed proceedings in this court.  In those proceedings the applicant alleged a jurisdictional error on the part of the Tribunal for failing to understand her fear to return home.  The matter came before the Registrar of this court for directions on 30 April 2004.  A standard order was made requiring the applicant to file and serve an amended application together with full particulars of each allegation of jurisdictional error that she had claimed.  The applicant did not do that.

6. On 26 July 2004 a Notice of Motion to dismiss the application was heard before me.  The application was heard in what is known as the "non compliance list" and the applicant was represented, I believe pro bono, by Mr Brezniak.  Certain proposals were made to the respondent concerning the way in which the proceedings could be dealt with.  But the respondent, as was her entitlement, declined to accept them.  I then made orders along the lines requested by the respondent in her Notice of Motion.  The applicant appealed.  Jacobson J granted leave to appeal and referred the matter back to this court for reconsideration on the basis that no reasons had been given for the decision to which I had come.  I accept the correctness of the views expressed by Jacobson J and today heard the application in full, again.

7. Mr White who appears on behalf of the respondent argued that the applicant's conduct demonstrated that she had not sought to advance her case in any meaningful way and asked me to draw an inference that she was utilising the processes of the court merely to extend her period of stay in Australia.  He said that her conduct was unjustifiably vexatious and clearly an abuse of process.  He referred particularly to the failure of the applicant to bring any proceedings, by which I believe he meant the withdrawal of the proceedings from the Federal Court and the failure to file any new proceedings in the High Court pursuant to the orders of Gaudron J and McHugh J.  Mr White also noted that the applicant had failed to comply with the orders of the Registrar and that I could dismiss these proceedings for that failure alone.  Mr White made much of the fact that the applicant had received the benefit of the Minister's scheme for the provision of some legal advice at the time of her original Federal Court application.

8. In response, the applicant told me that she had discontinued her Federal Court proceedings because she had joined the Muin and Lie class action.  She told me that after the Muin and Lie cases had been heard and won her solicitor told her that her case would have to be heard individually.  She admits that she did not meet the deadline but says that she was in the country at the time and thereafter her solicitor abandoned her.  She responds to Mr White's criticism of her having had legal advice by saying that she has attempted since the filing of these proceedings to obtain legal assistance but she was told by the lawyers whom she approached that they could not act for her as they had already given her some assistance previously.  I take this to mean that she made a further approach to the barrister under the Minister's Scheme.  She told me that she could not respond to the request for particulars because she did not have any legal help but she does wish for her case to be heard and for her to have an opportunity to tell the Court why she believes the Tribunal fell into jurisdictional error.

9. What is notable about this case is that the applicant has never had an opportunity to do just that.  She withdrew the first case on what I consider to be perfectly reasonable grounds.  She joined another class action which was going to proceed in the High Court.  I cannot see what the point was of continuing the process in the Federal Court.  She did not continue with the High Court proceedings after the orders of the Court.  The reason for this, whilst not particularly persuasive, was at least an explanation.  She then commenced proceedings in this court so that, perhaps for once, someone would have an opportunity of reading and considering her claim.

10. I cannot accept Mr White's submissions that what has occurred in this case constitutes an abuse of process.  That is a very serious matter.  I have in the past been prepared to find abuse of process.  I have particularly found it in cases where parties have applied to the Federal Court, had their cases heard by that court, had appeals from any decision dismissed and have applied to the High Court for special leave and, after that leave has been refused, have recommenced the proceedings in this court.  I consider that a true abuse.  This applicant has never had her case heard.  As I have said, I believe her reasons for discontinuing the proceedings in the Federal Court were justified.  I am therefore prepared to provide her with one further opportunity to get her case in order so that it can be heard.  If she fails to comply with the orders that I propose to make then she must suffer the dismissal of her proceedings.

11. The orders which I make are as follows:

    (1)Order that the applicant file and serve an amended application, which sets out clearly and provides full particulars of each and every jurisdictional error alleged to have been committed by the Tribunal, on or before 18 February 2005.

    (2)In the event that the applicant fails to comply with order 1 above the application shall stand dismissed pursuant to part 13, rule 13.03(2)(b) of the Federal Magistrates Court Rules and the applicant shall pay the respondent's costs assessed in the sum of $500.

    (3)If the applicant complies with order 1 hereof the matter shall be fixed for hearing by the Registrar on the first available date after 19 February 2005.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: