SZDCT v Minister for Immigration & Anor
[2007] FMCA 1424
•20 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1424 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of show cause application as having no reasonable prospect of success, frivolous, vexatious and an abuse of process. PRACTICE AND PROCEDURE – Habitual and persistent institution of vexatious proceedings – applicant a vexatious litigant – no further application except by leave. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth) |
| Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Jayasinghe v Minister for Immigration (1997) 76 FCR 301 Lee v Minister for Immigration [2002] FMCA 279 Singh v Minister for Immigration (2001) 109 FCR 18 SZASP v Minister for Immigration [2007] FCA 771 SZBIC v Minister for Immigration [2004] FCA 255 SZBWF v Minister for Immigration [2004] FMCA 83 SZDCT v Minister for Immigration & Anor [2004] FMCA 957 SZDCT v Minister for Immigration & Anor [2005] FCA 329 SZDCT v Minister for Immigration & Anor [2006] HCATrans 123 SZDCT v Minister for Immigration & Anor [2006] FMCA 641 SZDCT v Minister for Immigration & Anor [2006] FCA 992 SZDCT v Minister for Immigration [2007] HCATrans 212 |
| Applicant: | SZDCT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2346 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 20 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed, pursuant to rr.13.10(a), 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
Pursuant to r.13.11 of the Federal Magistrates Court Rules 2001 (Cth) the applicant may not institute any proceeding in this Court without 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 amount of $1,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2346 of 2007
| SZDCT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application under the Migration Act1958 (Cth) (“the Migration Act”) filed on 30 July 2007. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 July 2007. The applicant asserts notification of that decision the following day. I find that the application was filed within time. The Tribunal found that it had no jurisdiction in the review before it. The decision is annexed to an affidavit by the applicant filed with his show cause application.
The Tribunal found, undoubtedly correctly, that it lacked jurisdiction because it had previously exhausted its statutory function. In other words the decision of the delegate that the applicant was inviting the Tribunal to review had previously been reviewed by it. That earlier review had been found to be free from jurisdictional error. On the basis of extensive authority, some of which is referred to by the Tribunal in its reasons, the Tribunal found that it could do nothing further.
The show cause application and the accompanying affidavit assert jurisdictional error but those assertions have no bearing on the present decision of the Tribunal. Perhaps anticipating the Minister's response to the application, the applicant asserts that his present application is not vexatious or an abuse of process. That is indeed what the Minister asserts in his response filed on 13 August 2007. I incorporate the terms of that response in paragraphs1 to 3 in this judgment:
The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal handed down on 3 July 2007.
The application for review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.
The applicant has instituted other judicial review proceedings in relation to a previous decision. All previous applications have been dismissed and the judgments are available at: SZDCT v Minister for Immigration & Anor [2004] FMCA 957; SZDCT v Minister for Immigration & Multicultural & Affairs & Anor [2005] FCA 329; SZDCT v Minister for Immigration & Multicultural Affairs & Anor [2006] HCATrans 123; SZDCT v Minister for Immigration & Anor [2006] FMCA 641; SZDCT v Minister for Immigration & Multicultural & Affairs & Anor [2006] FCA 992; SZDCT v Minister for Immigration & Multicultural Affairs [2007] HCATrans 212. Accordingly:
(a)Pursuant to Part 13, Rule 13.10(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding.
(b)Pursuant to Part 13, Rule 13.10(b), the proceeding is frivolous or vexatious.
(c)Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.
I decided to deal with that response today on the first court date on the show cause application. The Minister's response is supported by the affidavit of Megan Louise Palmer made on 15 August 2007 and filed the following day. The relevant facts relating to the applicant's litigation history are summarised in written submissions filed on 15 August 2007. I incorporate paragraphs 3 through to 8 of those written submissions in this judgment as background:
The applicant’s litigation history is contained in the affidavit of Megan Louise Palmer sworn on 14 August 2007.
In summary, the applicant lodged an application for a protection visa on 5 August 2003, and a delegate of the first respondent refused to grant a protection visa to the applicant on 6 August 2003. The applicant lodged an application for review of that decision and on 25 February 2004 the Tribunal affirmed the delegate’s decision.
On 24 March 2004, the applicant filed an application seeking judicial review in the Federal Court Magistrates of Australia (proceedings SYG 866 of 2004). On 3 December 2004, Federal Magistrate Raphael dismissed the application for judicial review with costs. The applicant appealed to the Full Federal Court (proceedings NSD1904 of 2004) on 20 December 2004 and on 10 March 2005 the Honourable Justice Gyles dismissed the appeal with costs. The applicant filed an application for special leave to appeal to the High Court (proceedings S133 of 2005) on 5 April 2005 and on 9 March 2006 the Honourable Justices Hayne and Crennan dismissed the application.
On 22 March 2006, the applicant filed, in the Federal Magistrates Court, a second application for judicial review of the Tribunal’s decision handed down on 25 February 2004 (proceedings SYG846 of 2006). On 24 April 2006, Federal Magistrate Scarlett dismissed the application with costs. On 9 May 2006, the applicant appealed to the Federal Court and the Honourable Justice Rares dismissed the appeal on 11 July 2006 (proceedings NSD876 of 2006). The applicant filed an application for special leave to appeal to the High Court on 7 August 2006 and on 22 May 2007 the Honourable Justices Kirby and Callinan dismissed the application (proceedings S258 of 2006).
Tribunal’s decision
On 8 June 2007, the applicant lodged a second application for review to the Tribunal in respect of the delegate’s decision of 25 February 2004. On 2 July 2007, the Tribunal found that it had no jurisdiction to review the delegate’s decision.[1] The Tribunal found that a full review of the delegate’s decision had been undertaken, and that the Tribunal had already discharged its functions.[2] The Tribunal also noted that the applicant had already unsuccessfully sought judicial review of the first Tribunal decision.[3]
The Tribunal’s conclusion that it had no jurisdiction to review the application was plainly correct[4] and the Tribunal was functus officio.[5]
[1]Affidavit of Megan Louise Palmer sworn 14 August 2007, Annexure C, (“the Affidavit”) at page 23.8.
[2] The Affidavit at page 23.6.
[3] The Affidavit, at page 22.4.
[4] SZASP v Minister for Immigration [2007] FCA 771 at [4] per Moore J.
[5] Jayasinghe v Minister for Immigration (1997) 76 FCR 301 at 317 per Goldberg J; Singh v Minister for Immigration (2001) 109 FCR 18 at 28 [35] per Merkel J.
I also incorporate annexure A to the affidavit of Ms Palmer which is a chronology:
Background
Applicant born in India 27 March 1975
Applicant arrived in Australia 25 June 2003
DIMA
Application for protection visa lodged 5 August 2003
Delegate’s decision 6 August 2003
RRT
Application for review lodged 18 August 2003
RRT hearing 19 January 2004
RRT decision handed down 25 February 2004
Federal Magistrates Court – SYG866 of 2004
Application for judicial review lodged 24 March 2004
Non-compliance listing – application
dismissed for non-appearance 24 August 2004Application to set aside orders –
orders set aside 1 November 2004
Orders and judgment of Raphael FM,
dismissing application with costs
fixed in the sum of $4,250.00 3 December 2004Full Federal Court – NSD1904 of 2004
Notice of appeal lodged 20 December 2004
Orders and judgment of Gyles J
dismissing appeal with costs 10 March 2005
High Court – S133 of 2005
Application for special leave to
appeal lodged 5 April 2005
Applicant’s written case and draft
notice of appeal filed 3 May 2005Applicant’s written case and draft
notice of appeal served 28 October 2005Respondent’s summary of argument
filed and served 17 November 2005Applicant’s reply served 29 November 2005
Applicant’s reply filed 30 November 2005
Application book filed and served 7 December 2005
Order of Hayne and Crennan JJ
dismissing application with costs 9 March 2006Federal Magistrates Court – SYG846 of 2006
Application for judicial review lodged 22 March 2006
Response and affidavit filed and served 4 April 2006
First court date – Orders and judgment
of Scarlett FM dismissing application 24 April 2006Federal Court – NSD876 of 2006
Application for leave to appeal filed 9 May 2006
Orders and judgment of Rares J
dismissing appeal with costs 11 July 2006High Court – S258 of 2006
Application for special leave to
appeal lodged 7 August 2006Order of Kirby and Callinan JJ
dismissing application with costs 22 May 2007RRT
Application for review lodged 8 June 2007
RRT decision handed down 3 July 2007
Federal Magistrates Court – SYG 2346 of 2007
Application for judicial review lodged 30 July 2007
In SZDCT v Minister for Immigration [2004] FMCA 957 at [11], Raphael FM found that the first decision of the Tribunal was free from jurisdictional error. In SZDCT v Minister for Immigration [2005] FCA 329, Gyles J found no error in the approach of Raphael FM. In refusing special leave on 9 March 2006 Hayne and Crennan JJ said:
The decisions in the courts below turned on the Refugee Review Tribunal's finding that the applicant could reasonably be expected to relocate to another region in India. No jurisdictional error is apparent in this conclusion. We see no reason to doubt the correctness of the decision of Gyles J.
I take this to be a definitive statement that the first Tribunal decision was a privative clause decision. Nevertheless, the applicant sought judicial review of the first Tribunal decision a second time. That application was dismissed by Scarlett FM in SZDCT v Minister for Immigration [2006] FMCA 641. At paragraph 6 his Honour said:
This is an application that should never have been brought to Court because it is an abuse of process. It is an obvious matter for an order for costs as I have already made clear.
His Honour ordered that no further application to review the first decision of the Tribunal be accepted for filing in this Court without leave of the Court. The applicant sought leave to appeal to the Federal Court against the decision of Scarlett FM. In refusing that application for leave in SZDCT v Minister for Immigration [2006] FCA 992 at [7], his Honour Rares J said:
The applicant then brought proceedings before Scarlett FM which his Honour dismissed on the basis they were plainly out of time under s.477 of the Migration Act 1958 (Cth). His Honour also held that the proceedings that had been brought before him had already been heard and decided and that this was an attempt to re-litigate what had already been decided. I am of the opinion that his Honour's dismissal of the application on both grounds was correct. It follows that there is no arguable case which could be the subject of a grant of leave to appeal and I am also satisfied that there has been no injustice done to the applicant.
The applicant undeterred again sought special leave to appeal to the High Court. In refusing special leave Kirby J had this to say:
Undeterred by the earlier refusal of special leave, the applicant filed a second application, which was dismissed as an abuse of process by Scarlett FM in the Federal Magistrates Court. This was confirmed by Rares J in the Federal Court, exercising the appellate jurisdiction of that Court. His Honour dismissed the application on the basis that, in substance, it sought to relitigate matters already determined in the Federal Magistrates Court, by the Federal Court and by this Court. The proceeding was plainly an abuse of process.
This applicant has not adopted a new tactic. He has returned to the Tribunal for a second time seeking review of the same decision of the Delegate. That application to the Tribunal was an abuse of the Tribunal's process and it was doomed to fail. I agree with and adopt for the purposes of this judgment, with any necessary amendments, paras.9 through to 12 of the Minister's written submissions:
The application for judicial review of the second Tribunal decision cannot succeed. There is no argument available to the applicant which holds any prospect of success in establishing jurisdiction in the Tribunal to further consider his entitlement to a protection visa.
Whilst the Migration Act does not specifically preclude a further review application being submitted to the Tribunal, the scheme of review contained in the legislation makes a further application invalid. The time limit provided in the legislation militates against a second review application being considered. If a Tribunal considered a second application for review of a decision of the delegate it would effectively be reviewing its own decision. The Tribunal does not have and cannot have the power to conduct a further review of a delegate's decision unless a court of competent jurisdiction has quashed an earlier decision on review and directed that a review application be conducted afresh.[6]
The litigation history of the applicant and the unmeritorious nature of the application to the Tribunal and to this Court are factors which demonstrate that this proceeding is an abuse of process.[7] The application is devoid of particulars disclosing any substantial basis for the prosecution of the application.[8] The purported “grounds” of review are clearly untenable and it is plain and obvious that they have no chance of success.[9] Further, there are no reasonable prospects of successfully prosecuting the proceeding,[10] and it is frivolous and vexatious.[11] It is amenable to being dismissed on any of these grounds.
An award of indemnity costs is appropriate, having regard to commencement of this case in wilful disregard of the applicant’s litigation history and the unmeritorious nature of the application.[12] The vexatious nature of this proceeding and the persistent conduct of the applicant in commencing similar proceedings demonstrate that it is appropriate that the Court order, pursuant to rule 13.11 of the Rules, that the applicant may not institute a proceeding without the Court’s leave.
[6] Jayasinghe v Minister for Immigration (1997) 76 FCR 301 at 317.
[7] Rule 13.10(a): SZASP, note 5, per Moore J at [22]-[23].
[8] SZBIC v Minister for Immigration [2004] FCA 255 at [21]
[9] Lee v Minister for Immigration [2002] FMCA 279 at [24]; SZBWF v Minister for Immigration [2004] FMCA 83 at [25].
[10] Rule 13.10(a) of the Rules.
[11] Rule 13.10(b) of the Rules.
[12] Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 per Sheppard J at 233.
The applicant’s present application to the Court is patently a further abuse of this Court's process. In my view, the last four proceedings instituted by this applicant have been an abuse of process. Further, his second application to the Tribunal was, as I have already found, an abuse of the Tribunal's process. There must be an end to these repeated applications to the Courts which are a waste of time and resources.
The present application is doomed to fail and will be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court”). Given the repeated decisions of this Court and the Federal Court that such attempts to have the Tribunal exercise its functions more than once are hopeless, it is impossible to accept that the applicant has any genuine belief in the grounds advanced in his present application to the Court. I find that the application is frivolous and vexatious and ought also to be dismissed pursuant to r.13.10(b) of the Federal Magistrates Court Rules. As I have already found, the present application is an abuse of the Court's process and so should also be dismissed pursuant to r.13.10(c) of the Federal Magistrates Court Rules.
Previous efforts by this Court and the Federal Court to prevent this applicant from filing further applications have proved unsuccessful.
I am satisfied that the present application is a vexatious proceeding and I am satisfied that he has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in this Court, in the Federal Court and in the High Court. I order, pursuant to r.13.11 of the Federal Magistrates Court Rules, that the applicant may not institute any proceeding in this Court without leave of the Court.
Costs should be awarded on an indemnity basis. The Minister’s actual costs are $1,800. I 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 amount of $1,800.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 August 2007
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