SZDDH v Minister for Immigration
[2006] FMCA 52
•23 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDDH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 52 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of application as an abuse of process and as frivolous and vexatious – repeated applications to the Court alleging the same or similar grounds. |
| Federal Court Rules Federal Magistrates Court Rules 2001 (Cth) Judiciary Act 1903 (Cth), ss.39B, 44 Migration Act 1958, s. |
| SZDDH v Minister for Immigration [2005] HCATrans 631 Walton v Gardiner (1992-1993) 177 CLR 378 |
| Applicant: | SZDDH |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2504 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 23 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 January 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Mr A Markus Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rules 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by this applicant to review the decision of the Refugee Review Tribunal made on 21 June 2000 and handed down on 6 July 2000, nor any application by this applicant to review the decision of the delegate that preceded the decision of the Refugee Review Tribunal be accepted for filing, except by 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 sum of $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2504 of 2005
| SZDDH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion by the Minister of which notice was given on 4 October 2005. The motion seeks the summary dismissal of a judicial review application filed on 7 September 2005. The Minister asserts that the judicial review application is an abuse of process and has no prospect of success. Further, the Minister submits orally that the judicial review application is frivolous and vexatious. The motion is supported by the affidavit of Kristy Lee Alexander made on 4 October 2005. I received that affidavit as evidence. Both parties also prepared written submissions. Those of the applicant were filed on 18 November 2005 and those of the Minister on 15 November 2005. The motion came before me for hearing on 21 November 2005.
I adjourned the hearing of the motion until today due to the illness of the applicant.
Background facts relating to this matter are set out in the Minister's written submissions. I adopt paragraphs 4 to 18 of those submissions as background:
The applicant is a citizen of Bangladesh. On 18 November 1998 he deserted his ship in an Australian port. On 3 December 1998 he lodged an application for a protection visa. On 22 December 1998 his application for a protection visa was refused by a delegate of the Minister. On 13 January 1999 he sought review of the delegate’s decision by the RRT.
On 4 April 2000 the RRT wrote to the applicant advising him that it had looked at all the material relating to his application but was not prepared to make a favourable decision on this information alone. He was offered the opportunity to attend a hearing and to present all evidence and other arguments in support of his claim. The applicant had a migration agent. Through the agent he initially indicated that he wished to attend a hearing. However, on 19 June 2000, one day before the hearing, the agent wrote to the RRT advising the RRT that the applicant did not wish to attend the hearing and wanted a decision to be made on the information already provided.
The applicant claimed to have a well-founded fear of persecution on the basis of his political opinion because of his involvement with the Begumthana Committtee of the BNP. He claimed that after the Awami League came to power in 1996 he was targeted by their supporters and accused of burning and looting a local Awami League office. He claimed that he was harassed and was being searched for by the police, but he went into hiding and was able to obtain work on a ship in Hong Kong.
The RRT made its decision on 21 June 2000. This decision was handed down, and notified in writing to the applicant, on 6 July 2000.[1] The RRT noted that the applicant had provided only limited information regarding the problems he claimed to have faced prior to leaving Bangladesh and the precise nature of his political involvement was unclear, as was the reason why he was targeted by members of the AL. The RRT also noted that when and why the applicant was falsely charged with burning and looting an AL office was also unclear.
[1] Affidavit of Kristy Lee Alexander, Annexure A
The RRT observed that, if the applicant had attended the hearing, it would have been possible to explore the matters that were of concern to it. Accordingly, on the basis of the evidence before it, the RRT was not satisfied that the applicant had a well-founded fear of persecution because of his political opinion or for any other Convention reason.
Previous proceedings
The applicant’s litigation history is set out in the affidavit of Kristy Lee Alexander sworn on 4 October 2005 and is, for ease of reference, summarised below.
On or around 17 August 2000 the applicant became a party to a proceeding S89 of 1999 in the High Court of Australia commenced by Ms Lie as a representative of a number of plaintiffs including the applicant.
Pursuant to orders made by Gaudron J on 25 November 2002, the applicant, through his solicitors, Adrian Joel & Co, filed a draft order nisi and affidavit in support in the High Court of Australia on 29 May 2003 seeking relief in respect of the decision of the RRT dated 21 June 2000, and handed down on 6 July 2000.[2]
Pursuant to Gaurdron J’s orders of 25 November 2002, the applicant’s application for an order nisi was remitted instanter to the Federal Court of Australia pursuant to s.44 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).
On 3 February 2004 Emmett J dismissed the applicant’s order nisi application with costs pursuant to O10, r7(2) of the Federal Court Rules as the applicant had failed to comply with a direction of the court.[3]
On 26 March 2004 an application under s.39B of the Judiciary Act was filed by the applicant in this court seeking review of the same decision of the RRT handed down on 6 July 2000.[4]
On 10 September 2004 Raphael FM dismissed the application with costs pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) as disclosing no reasonable cause of action.[5]
On 23 September 2004 the applicant filed a Notice of Appeal from the decision of Raphael FM and on 22 November 2004 Tamberlin J dismissed the appeal with costs.[6]
On 13 December 2004 the applicant filed an application for special leave to appeal from the judgment of Tamberlin J in the High Court of Australia.[7] On 29 August 2005 the applicant’s application for special leave to appeal was dismissed by McHugh and Heydon JJ.[8]
On 7 September 2005 the applicant filed a further application under s.39B of the Judiciary Act in this Court seeking review of the same decision of the RRT dated handed down on 6 July 2000.
[2] Affidavit of Kristy Lee Alexander, Annexure B
[3] Affidavit of Kristy Lee Alexander, Annexure C
[4] Affidavit of Kristy Lee Alexander, Annexure D
[5] Affidavit of Kristy Lee Alexander, Annexure F
[6] Affidavit of Kristy Lee Alexander, Annexure G
[7] Affidavit of Kristy Lee Alexander, Annexure H
[8] Affidavit of Kristy Lee Alexander, Annexures I & J
I accept the accuracy of the facts deposed to in the affidavit of Kristy Lee Alexander. The present judicial review application is essentially the same as an earlier application made to this Court to review the same RRT decision. That application was dismissed by Federal Magistrate Raphael. The application was dismissed summarily as disclosing no reasonable cause of action. Leave to appeal from that decision was refused by the Federal Court. Special leave to appeal to the High Court was also refused. In refusing special leave the High Court commented adversely upon the conduct of the applicant and his migration agent before the RRT. Their Honours stated:
We further note that a distinctive pattern has emerged whereby applicants inform the Tribunal, through their migration agent, that they will not appear at the Tribunal hearing. This usually occurs the day before the scheduled hearing. They then seek leave to have the Tribunal's determination declared void by applying for an order nisi. The costs incurred as a result of these futile proceedings are substantial. It should be made clear to future applicants that they will not succeed in their applications by taking this route, and that the Courts will not refrain from awarding costs against them where appropriate.
Their Honours were referring to the circumstance whereby the applicant had been invited to a hearing before the RRT. Initially, through his agent, the invitation was accepted. However, the day before the scheduled date before the RRT the applicant, again through his agent, declined the hearing invitation. The almost inevitable consequence was that the RRT was unable to be satisfied that a protection visa should be granted to the applicant. The applicant had already been put on notice of that likelihood when he was invited to a hearing.
In his written submission the applicant complains about the conduct of his migration agent. However, that was dealt with by Federal Magistrate Raphael in paragraph 11 of his decision and also by Tamberlin J in the Federal Court in paragraph 5 of his decision. There is no substance to the application insofar as it is based upon asserted wrongdoing by the applicant's migration agent. The present judicial review application is doomed to fail just as the earlier one was.
However, I do not see a need for me to dismiss the judicial review application as disclosing no reasonable cause of action. That was the fate of the earlier judicial review application in this Court. The repeated bringing of judicial review applications which are doomed to fail and which raise essentially the same grounds is an abuse of process. I agree with, and adopt for the purposes of this judgment, paragraphs 24 to 26 of the Minister's written submissions:
Rule 13.10(c) of the Federal Magistrates Court Rules deals with dismissal of a proceeding or claim for relief if that proceeding or claim is an abuse of process of the Court.
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 propriety 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. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police 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".
In the first respondent’s submission, that the present proceedings amount to an abuse of process because:
·the repeated bringing of applications for judicial review of the same tribunal decision is unjustifiable, vexatious and brings the administration of justice into disrepute;
·there is an underlying public interest in the finality of litigation;
·the current application for judicial review is devoid of particulars, and fails to disclose any arguable basis; and
·having regard to the applicant’s litigation history, the court may infer that the applicant has brought this application for the collateral purpose of extending the period of his stay in this country.[9]
[9] See VWZG v Minister for Immigration [2005] FCA 1018 per Weinberg J at [14].
The present judicial review application is also frivolous and vexatious. It is impossible to believe that the applicant could have any genuine belief in the grounds of review he currently asserts. The Minister should not be repeatedly vexed by applications of this nature.
I will dismiss the judicial review application pursuant to rules 13.10(b) and (c) of the Federal Magistrates Court rules and I so order.
In addition to dismissing the judicial review application, it is appropriate that I should prevent a further judicial review application being filed except by leave. I will order that no further application by this applicant to review the decision of the RRT made on 21 June 2000 and handed down on 6 July 2000, nor any application by this applicant to review the decision of the delegate that preceded the decision of the RRT, be accepted for filing except by leave of the Court. In relation to the RRT decision any further application is likely to be an abuse of process. In relation to the delegate's decision, since 1 December 2005 the Court has lacked jurisdiction to entertain such an application.
As to costs, I accept that the Minister has incurred $2,200 in responding to the present judicial review application. Those are the Minister's actual costs. I accept the Minister's submission that costs should be awarded on an indemnity basis. I will 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 sum of $2,200.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 January 2006
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