SZDFX v Minister for Immigration
[2006] FMCA 734
•18 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDFX v MINISTER FOR IMMIGRATION | [2006] FMCA 734 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – application out of time – whether the Court has jurisdiction – whether the application is an abuse of process. |
| Migration Act 1958 (Cth), ss.476(2)(a), 476(4) Administrative Decisions Judicial Review Act 1977 (Cth) Federal Magistrates Court Rules 2001, rr.13.10, 13.11 |
| Horvath v Commonwealth Bank of Australia [1999] FCA 504 Hunter v Chief Constable of the West Midlands Police (1982) AC 529 Ramsay v Skyring (1999) 164 ALR 378 SZDFX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 617 SZDFX v Minister Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1172 SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549 Walton v Gardiner (1993) 177 CLR 378 Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 |
| Applicant: | SZDFX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG42 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 18 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application of 3 January 2006 be dismissed as incompetent.
That in the alternative, the application be dismissed as an abuse of process pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
That the Applicant pay the Respondent’s costs on an indemnity basis in the sum of $2,850.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG42 of 2006
| SZDFX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the Court by way of an interlocutory application filed by the respondent on 31 January 2006 seeking that an application for judicial review filed by the applicant on 3 January 2006 be dismissed, first on the basis that the application is incompetent as the court does not have jurisdiction to hear the application because it seeks review of a primary decision within section 476(2)(a) of the Migration Act 1958 (Cth) (the Act) and, in the alternative, on the basis that the application is an abuse of process.
The background to this application is the applicant, a citizen of India, applied for a protection visa in September 2003. The application was refused on 28 November 2003. It is that refusal that is in issue in these proceedings. The applicant sought review by the Refugee Review Tribunal. The Tribunal affirmed the decision of the delegate of the respondent not to grant the applicant a protection visa by a decision handed down on 17 March 2004.
The applicant commenced proceedings in this court on 7 April 2004, seeking review of the Tribunal decision. On 18 April 2005 that application was dismissed with costs by Federal Magistrate Mowbray. See SZDFX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 617. His Honour found that there was no jurisdictional error by the Tribunal.
The applicant appealed to the Federal Court on 1 August 2005. Hill J dismissed the application (SZDFX v Minister Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1172), finding that the Federal Magistrate had found no jurisdictional error and that no error had been shown in his decision. The applicant filed an application for special leave to appeal to the High Court, which was dismissed on 15 December 2005.
On 3 January 2006, as I have indicated, the applicant filed an application for an order to show cause, seeking review of the decision of the Minister's delegate under the Migration Act 1958 and also applying for an order of review under the Administrative Decisions Judicial Review Act 1977. That application refers to the date of the decision as 28 November 2003 and also states that the date of notification of the decision was 28 November 2003 (although one of the grounds relied on in the application takes issue with notification of the decision and whether there was a valid or effective notification).
The first ground on which the respondent seeks that the application be dismissed is that this court has no jurisdiction. Section 476(2)(a) of the Migration Act 1958 provides that the Federal Magistrates Court has no jurisdiction in relation to a primary decision. "Primary decision" is defined in section 476(4) to mean:
…a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed): or
(b)that would have been so reviewable if an application for such review had been made within a specified period.
The decision of the delegate of the respondent is a primary decision, being at least a purported privative clause decision that is, and indeed was, reviewed under Part 7 of the Migration Act 1958.
In these circumstances, the application falls within section 476(2)(a), so that the Court has no jurisdiction and the application should be dismissed as incompetent on that basis. That would be enough to dispose of this application. However, if I am wrong (and I have not had the benefit of submissions from the applicant who is self-represented on this issue), in the alternative, I would dismiss the applicant's application of 3 January 2006 as an abuse of the process of the Court for the following reasons.
The applicant has had and has taken advantage of the opportunity, to have his application determined by way of merits review by the Refugee Review Tribunal. Even if there was an error, let alone a jurisdictional error, affecting the decision of the delegate, there is clear authority that such an error could be cured by the decision of the Tribunal which has been held not to be invalid. See Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 at 298 to 299. A Court will not grant relief in respect of a delegate's decision when the person affected by the decision has, as in this case, taken the opportunity to seek a de novo merits review and where the decision on review has been found not to be flawed by error subject to correction in judicial review proceedings.
As is apparent from the decision of the Federal Magistrates Court, the Federal Court and the applicant's unsuccessful application for special leave to appeal to the High Court the applicant has exhausted every avenue of merits review and judicial review of the Tribunal decision. No jurisdictional error has been established in the Tribunal decision.
The grounds in the present application (and I note that the applicant made no submissions in relation to the grounds in his application) are not such as to raise any error in the delegate’s decision or procedures of a nature that could not be cured. Insofar as he takes issue with notification, at the same time he acknowledges in his application that he was notified of the delegate's decision. (See further in relation to such an argument SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549).
In these circumstances, relief in respect of the delegate's decision would be futile and serve no legal purpose. No prospect of success having been established, I have also regard to the extensive and unexplained delay of the applicant in seeking review of the delegate's decision. In the particular circumstances of this case I consider that it can be inferred, having regard to the applicant's litigation history and all the circumstances of this case, that the applicant filed the present application for the collateral purpose of extending the period of his stay in Australia, not for the purpose of having the court adjudicate on the issues to which the proceedings give rise.
In all these circumstances I have had regard to the general principles in relation to abuse of process in Walton v Gardiner (1993) 177 CLR 378 at 392 – 393 and, in particular, that as was said by Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 the Court should exercise its inherent power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, “would bring the administration of justice into disrepute amongst right-thinking people”. Further, the Court should have regard to the underlying public interest that there be finality in litigation and that a party should not continue to be vexed in the same matter.
Accordingly, if I am wrong in finding that the court has no jurisdiction, I would, on the alternative basis, dismiss the application of the applicant as an abuse of process pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
The respondent raised with the Court whether it should find the applicant to be a vexatious litigant pursuant to Rule 13.11(3) of the Federal Magistrates Court Rules, and if so, whether the court should go on to order that no further application by the applicant to review the delegate's decision or the Tribunal's decision be accepted for filing without leave of the Court.
In the particular circumstances of this case, where the applicant has initiated one prior set of proceedings, albeit pursued all the way to an application for special leave against the Minister and then instituted these proceedings in relation to a different decision (albeit against the same respondent) I am not persuaded that the circumstances are such that I should be satisfied that the applicant can be regarded as habitually and persistently and without reasonable grounds instituting vexatious proceedings in this court against another person. See generally Ramsay v Skyring (1999) 164 ALR 378 and Horvath v Commonwealth Bank of Australia [1999] FCA 504. In these circumstances and bearing in mind that the primary basis for my decision is that the Court has no jurisdiction (and hence that there may be an issue as to the scope of the Court’s powers to make orders under Rules 13.11) I am not persuaded on the material put before me that I should declare the applicant a vexatious litigant or restrain him from bringing further proceedings in this Court in relation to the decision of the delegate.
RECORDED : NOT TRANSCRIBED
The respondent has succeeded in the interlocutory application. This has meant that the principal proceedings are dismissed. Costs are sought on an indemnity basis in the sum of $2,850. The applicant had nothing to say in relation to the application for costs. In the particular circumstances of this case, I consider that it is appropriate to award costs on the basis sought, bearing in mind my findings in relation to abuse of process.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 31 May 2006
0