SZDFW v Minister for Immigration - [2005] FMCA 1688

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDFW v MINISTER FOR IMMIGRATION

[2005] FMCA 1688

MIGRATION – Delegate’s decision – challenge to validity – applicant obtained review by Tribunal and protracted judicial review – application dismissed as abuse of process.

Federal Magistrates Court Rules 2001, rr.13.03A(d), 13.10(c), 16.05(2)(a)
High Court Rules 2004, r.41.11.1
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.414, 415, 483A

SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 395
SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1169
SZDFW v Minister for Immigration [2004] FMCA 459
NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 106
NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1170
SZGMZ v Minister for Immigration [2005] FMCA 1549

Applicant:

SZDFW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1802 of 2005

Judgment of:

Smith FM

Hearing dates:

10 October 2005, 8 November 2005

Delivered at:

Sydney

Delivered on:

8 November 2005

REPRESENTATION

Counsel for the Applicant:

No appearance by or on behalf of the applicant

Counsel for the Respondent:

Ms E Warner Knight

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the respondent’s costs on an indemnity basis in the sum of $6,815.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 4 June 2002 reference N00/31638 or for review of the decision of the delegate of the respondent dated 30 December 1999 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1802 of 2005

SZDFW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal proceeding in this case is an application filed on 8 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) and s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). It seeks orders by way of judicial review in relation to “‘the notification’ of a decision and ‘the decision’ of the Delegate of the Minister”, being a decision of a delegate made on 30 December 1999, DIMIA File No. CLF1999/21450.
That decision was a decision to refuse an application for a protection visa by the applicant lodged on 9 November 1999. It is clear that the applicant received actual notice of that decision in time to exercise his right of merits appeal to the Refuge Review Tribunal (“the Tribunal”), since he made such an appeal on 20 January 2000.
In its decision handed down on 4 June 2002, the Tribunal confirmed the delegate’s decision, exercising its powers under s.414 and s.415 of the Migration Act.
The applicant then embarked on a long history of litigation seeking to set aside the Tribunal decision and have his case reheard by the Tribunal. He failed at every step, and was ultimately faced by directions preventing the filing of any further applications challenging the Tribunal’s decision. I shall recite that history below.
The applicant’s present application adopts a precedent, which is circulating in Sydney at present, which seeks to get around such directions by challenging an earlier stage in the decision‑making on the protection visa. It is unnecessary for me to set out the contents of the application since, in my opinion, it is indistinguishable from the application which I recently described in SZGMZ v Minister for Immigration [2005] FMCA 1549 at [15]‑[20] (“SZGMZ”). I would analyse the subject matter of the present application in the same way as I did the application in that matter.
As in that matter, the Minister has moved for the summary dismissal of the principal application as an abuse of the process of the Court.
I am satisfied, for the reasons as I gave in SZGMZ, that it is an abuse of the process of the Court. In summary, there are four reasons:
i)It has no prospect of success for its argument that a failure to comply with notification requirements invalidated the decision of the delegate;
ii)Any relief directed at the delegate’s decision would be refused at a final hearing, because it would be futile and serve no legal purpose for the court to address the validity of the delegate’s decision, in view of the applicant’s pursuit of merits review and the effect of the Tribunal decision;
iii)The application would certainly be dismissed on discretionary grounds due to the history of litigation which I shall set out below, which is even more extensive than that of the applicant in SZGMZ; and
iv)The application would also be dismissed on discretionary grounds as an abuse of process, due to being brought for the predominant and collateral purpose of obtaining bridging visas as entitlement that depends upon the continuance of judicial review proceedings, regardless of their merits. The applicant’s present history and conduct clearly indicates such a purpose, in my opinion.
The applicant’s history is as follows.
The Tribunal’s decision was handed down on 4 June 2002. It addressed the applicant’s claims that he would be persecuted if he returned to Bangladesh because of a history of persecution due to his activities with the Jatiya Party, and outstanding cases against him. The Tribunal said:
The applicant’s evidence in relation to most aspects of his claims was vague, general, unconvincing, contained significant internal inconsistencies and was inconsistent with the independent information. I do not consider that the applicant was a reliable or credible witness.
An application for review of the Tribunal’s decision was filed in the Federal Court on 26 June 2002. This adopted a form of precedent which was discursive and had no clear bearing on the decision of the Tribunal. Jacobson J, on 19 September 2002, dismissed the application (see NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1170). The applicant appeared in person and addressed his application. His Honour said:
[22]The reason why the RRT dismissed the application was that it made strong findings that the applicant was not a credible witness. Indeed, the RRT found that the applicant’s claims were fabricated. …
[24]It follows that even under the statutory provisions in force prior to the enactment of the privative clause there were no grounds for judicial review of the decision. …
[29]In the present case, there is nothing in the published reasons for the decision of the RRT to suggest that it made any factual error or that there was faulty reasoning. Nor is there anything in the circumstances which point to an indication that the RRT was committed to a conclusion reached prior to embarking upon the review process and that it was not open to persuasion.
On 5 November 2002, the applicant appealed to the Full Court using a form which did not identify any proper ground of appeal. On 15 May 2003, Moore, Mansfield and Stone JJ dismissed the appeal (see NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 106). There was no appearance for the applicant when the matter was listed for hearing. Their Honours said:
[4]Accordingly, the appellant has failed to demonstrate any error on the part of the primary judge and in our view, the appropriate order is to dismiss the appeal with costs.
On 5 June 2003, the applicant applied for special leave to appeal to the High Court. His application was listed before Callinan and Heydon JJ on 30 April 2004, but there was no appearance by or for the applicant. Callinan J said:
The Court has considered the written material of the applicant. The Refugee Review Tribunal rejected the applicant’s application for a protection visa because it disbelieved the applicant’s claim to have been a member of a persecuted political party in Bangladesh and to have been a victim of violence. It drew attention to the applicant’s reliance on forged documents. Justice Jacobsen rejected the applicant’s application for review of the Tribunal’s decision on the ground that the applicant’s complaints were largely factual. He did not accept the applicant’s contention that the Tribunal was biased. An appeal to the Full Federal Court failed on the same ground.
The primary ground on which special leave is sought is a contention that the Tribunal denied the applicant procedural fairness. As with many other unrepresented persons seeking protection visas who apply for special leave to appeal to this Court, the applicant, whose summary of argument was prepared by a person having some legal knowledge, referred to Muin v Refugee Review Tribunal (2002) 76 ALJR 966. The point was not taken below. However, the applicant did not demonstrate any factual basis for the application of that case. Special leave is refused with costs.
Meanwhile, the applicant had commenced his second proceedings for judicial review of the Tribunal’s decision. On 7 April 2004, the applicant filed in the Federal Magistrates Court an application seeking relief under s.39B of the Judiciary Act. The application made criticisms of the Tribunal for failing to take matters into consideration, “consciously choosing to ignore applicant’s explanations”, following “an erroneous approach to the applicant’s claims”, and other unspecified jurisdictional errors.
On 16 July 2004, Raphael FM considered an application by the respondent for summary dismissal of the application. His Honour upheld the application and dismissed the principal proceeding (see SZDFW v Minister for Immigration [2004] FMCA 459). His Honour referred to the previous litigation history and said:
[7]The real vice about the application filed on 7 April 2004 is that it is an application for review of a decision that has already been more than thoroughly reviewed. In those circumstances it is not appropriate for this court to undertake a further examination of the decision of the Refugee Review Tribunal because to do so would in my view be an abuse of process of the court and would bring the court itself into disrepute.
His Honour ordered:
The Registry not accept any further applications arising out of the decision of the Refugee Review Tribunal of 7 May 2002 from this applicant. This order does not apply to any appeal against this order.
The applicant on 30 July 2004 filed a notice of appeal to the Federal Court. On 10 September 2004, Beaumont J dismissed the appeal with costs (see SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1169). Beaumont J referred to the applicant’s written argument concerning the competency of his appeal and said:
[11]I indicated to the appellant that I would wish to be informed of the points he would seek to argue on the appeal, if leave were to be granted.
His Honour then identified the points made by the applicant and said:
[12]Given the decision of Jacobson J and of the Full Court in this matter, in my opinion none of these grounds are now open to the applicant.
On 5 October 2004, the applicant filed an application for special leave to appeal to the High Court of Australia. His application duplicated his previous application by invoking Muin v Refugee Review Tribunal. His application was dealt with by the Court pursuant to Rule 41.11.1 on 16 June 2005. Gleeson CJ and Gummow J published the reasons of the Court for refusing a grant of special leave (see SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 395). Their Honours referred to the history of the matter and said:
there is no prospect of success in any appeal to this Court from the Federal Court.
As I have indicated, in less than a month the applicant had commenced his present application in this Court. It came before me at a first court date on 9 August 2005. The applicant appeared in person. I gave directions for the hearing of the Minister’s foreshadowed interlocutory application to be heard on 10 October 2005.
The applicant did not attend on 10 October, but sent to the Court an application for an adjournment, accompanied by a medical certificate which certified that the applicant was suffering from “flu and bronchitis” and was “unfit for work from 7/10/05 up to and including 10/10/05”. I adjourned the Minister’s application and gave a direction that the applicant be notified of the adjourned date, which is today, and that the Court would expect that any further adjournment on medical grounds to be supported by a proper medical report. I am satisfied that notice of the order was given to the applicant at both addresses shown in his application to the Court.
There has been no appearance today by the applicant and no communication from him explaining his absence. In view of the history of the matter I have recounted above, I consider it appropriate for the Court to proceed with the Minister’s application in the absence of the applicant pursuant to Rule 13.03A(d). It will be open to the applicant to apply to this Court under Rule 16.05(2)(a) to set aside the orders that I propose to make today. He will, however, need to establish by evidence an explanation for his absence today and merit in the proceeding which I propose to dismiss.
For the above reasons, including my reasoning adopted from SZGMZ, I consider that the Minister has made out an entitlement to have the proceeding dismissed summarily under Rule 13.10(c), to an order for costs on an indemnity basis, and for a further direction to the Registry in more extensive terms than that given by Raphael FM.
RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty‑two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 22 November 2005