SZDDG v Minister for Immigration

[2004] FMCA 420

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDDG v MINISTER FOR IMMIGRATION [2004] FMCA 420

MIGRATION – Review of RRT decision – whether application for review should be dismissed as an abuse of process – where application lodged in Federal Magistrates Court for review of a decision already discontinued or dismissed in the Federal Court and High Court.

Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001, r 13.10(c)

Walton v Gardiner (1992-1993) 177 CLR 378
Hunter v The Chief Constable of the West Midlands Police (1982) AC 529

Applicant: SZDDG

Respondent: MINISTER FOR IMMIGRATION

File No: SZ 904 of 2004

Delivered on: 4 June 2004

Delivered at: Sydney

Hearing date: 4 June 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Applicant in person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs in the sum of $1,500.00.

3. The Registry is not to accept any new application from the applicant without leave of the Court. This order does not apply to an appeal against these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 904 of 2004

SZDDG

Applicant

And

MINISTER FOR IMMIGRATION & MUTLICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings arrived in Australia on 12 September 1999. Today, on 17 June 2004, I am dealing with the third application that he has made for protection by way of an application by the Minister under Order 13 Rule 10(c) of the Federal Magistrates Court Rules 2001 to dismiss this third application on the grounds that it constitutes an abuse of the process of the court. 

2. The short history of the matter is that the applicant made an application for a protection visa on 14 October 1999 which was declined by the delegate on 22 November 1999.  It took a further two and a half years before the matter reached the Refugee Review Tribunal who handed down its decision on 7 February 2002.  The applicant then made application for review of the decision to the Federal Court but on 2 May 2002 Allsop J transferred it to this court.  At that time this court was not so burdened by applications as it currently is and a hearing was able to be scheduled for 30 May 2002 before Barnes FM.  Her Honour attended the hearing but unfortunately the applicant did not and she therefore dismissed the matter under Order 32 Rule 2 of the Federal Court Rules with costs.

3. On 20 June 2002 the applicant filed a notice of appeal appealing the decision of Barnes FM.  This was in all probability the wrong approach to take because the applicant could have made an application to this court to vacate the order.  On 19 July 2002 a directions hearing took place before Stone J and the matter was listed for hearing on 9 August 2002.  The applicant did not attend the directions hearing.  On 8 August 2002 the applicant purported to file by fax a Notice of Discontinuance dated 7 August 2002.  Stone J did not accept the Notice of Discontinuance and on 2 August 2002 in the absence of the applicant dismissed the appeal with costs.

4. At that stage the legal processes were exhausted but the applicant was not removed from the country.  He remained until 17 April 2003 when he sought to file a draft order nisi and affidavit in the High Court of Australia seeking writs of mandamus and certiorari and injunctions in respect of the decision of the delegate of the respondent dated 22 November 1999 and the decision of the Tribunal dated 14 January 2002. 

5. On 21 May 2003 the applicant filed a Notice of Discontinuance of that application for an order nisi and that was the end of those proceedings. The applicant was still not removed from the country. On 26 March 2004, slightly under a year later, the applicant made an application under s.39B of the Judiciary Act 1903 in this court seeking review of the very same decision that had been traversed in two superior courts and discontinued or dismissed.  The respondent Minister has now brought an application to dismiss that third attempt by the applicant to have his decision reviewed on the grounds that it constitutes an abuse of process.

6. The applicant appeared before me today.  He presented me with a document consisting of five pages headed "Applicant's Argument for Competency".  The tone of this document can be seen from paragraph 2 which I set out below:

   “The Tribunal failed to internalise the circumstantial grounds of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and as such has breached sections 426(2), 426(3), 427(4) and 440(2)(b) of the Act.”

1. The balance of the document appears to be a generic challenge to the decision without giving any particulars that directly refers it to the circumstances of the applicant. 

2. 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 proprietary 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.”

3. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v The Chief Constable of the West Midlands Police (1982) AC 529 at [536] 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".

4. The case before me is just such a case.  The applicant has now attempted on three occasions to challenge a decision made in 2002.  He has not appeared before the court on two of those three occasions.  When he appeared today he did not provide me with any assistance as to why this application by the Minister should not be granted and did not provide me with any details of why the decision in question could be impugned.  The applicant has had an advantageous stay in Australia due to delays and the failure of the Department to remove him on the two occasions when it had the opportunity to do so.  I do not propose to provide him with any further time by acceding to his request made through the interpreter to provide him with an adjournment so that he could "obtain further advice". 

5. I dismiss this application under Rule 13.10(c) of the Federal Magistrates Court Rules 2001.  I order that the applicant pay the respondent's costs which I assess in the sum of $1,500.00. I also order that the registry not accept any new application from this applicant whose name is known to it in the file without leave of the Court.  This order does not apply to an appeal against this order.

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

Associate: 

Date: