SZDLQ v Minister for Immigration
[2006] FMCA 403
•23 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDLQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 403 |
| MIGRATION – Refugee – notice of motion – seeking summary dismissal – attempt to re-litigate exactly the same matters – a party should not be repeatedly vexed – abuse of process – application dismissed. |
| Judiciary Act 1903, s.39 Migration Act 1958, ss.424A, 424A(1), 477(1A), 483A Federal Magistrates Court Rules 2001, r.13.10(c). |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Walton v Gardener (1993) 177 CLR 378 Applicant S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133 Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 SZBJM vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 SZDLQ v Minister for Immigration [2004] FMCA 947 VWZG vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018 SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598 SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498 |
| Applicant: | SZDLQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2747 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 February 2006 |
| Date of Last Submission: | 18 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. H. Dejean |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Leave be granted to change the name of the first respondent to Minister for Immigration and Multicultural Affairs.
The application is dismissed as an abuse of process pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 upholding the respondent’s Notice of Motion.
That no further application by the applicant, to review the decision of the Refugee Review Tribunal dated 22 April 2004 nor the decision of the respondent’s delegate dated 11 June 2003, be accepted for filing except by leave of the Court.
The applicant to pay the first respondent’s costs set in the amount of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2747 of 2005
| SZDLQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised)
I have before me an application filed in this Court on 27 September 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) (the Tribunal was joined as the second respondent at the first Court date in this matter) which is described in the application as having been notified to the applicant on 22 April 2004.
This matter came on before me by way of Notice of Motion filed by the respondent on 24 October 2005 seeking an order dismissing the application on the grounds that the proceeding is an abuse of process of the Court, and that the originating application should be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (“the Rules”). The respondent also seeks orders that no further application, by the applicant, to review the decision of the Tribunal dated 22 April 2004 and the decision of the delegate dated 11 June 2003, be accepted for filing except by leave of the Court. This Notice of Motion was supported by the affidavit, with annexures, of Hervee Dupont Dejean, a solicitor in the employ of the respondent Minister's solicitors, affirmed on 21 October 2005. On 24 October 2005 the respondent also filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to try this application on the grounds that this was a privative clause decision and that contrary to s.477(1A) of the Migration Act 1958 (“the Act”) (as it was then), the application had not been lodged within 28 days of the applicant being notified of the decision of the Tribunal.
At the hearing today (23 February 2005) I also have before me a document headed “Applicant's Submissions” which had been filed on 16 February 2006, and the first respondent's submissions filed on
18 January 2006.The affidavit of Hervee Dupont Dejean sworn on 21 October 2005, with relevant annexures, shows that the only Tribunal decision concerning the applicant, which is now before me, has been the subject of previous litigation. I note, for the purposes of my Judgement, paragraphs 3 to 9, with references to annexures of that, affidavit:
“3.On 4 May 2004 an application under s.39B of the Judiciary Act 1903 (Cth) was filed by the applicant in this court. The application sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 22 April 2004. This decision affirmed a decision of the delegate of the respondent refusing the applicant's application for a protection visa. Annexed hereto and marked “A” is a copy of the Tribunal's decision. Annexed hereto and marked “B” is a copy of the application filed on 4 May 2004.
4. On 30 November 2004 Smith FM dismissed the application with costs. Annexed hereto and marked “C” is a copy of his Honour's judgement and orders.
5.On 20 December 2004 the applicant filed a notice of appeal from the decision of Smith FM. Annexed hereto and marked “D” is a copy of that notice of appeal.
6. On 12 May 2005 Conti J dismissed the appeal with cost. Annexed hereto and marked “E” is a copy of his Honour’s judgement and orders.
7. On 6 June 2005 the applicant filed an application for special leave to appeal from the judgement of Conti J in the High Court of Australia. Annexed hereto and marked “F” is a copy of the application for special leave to appeal.
8. On 8 September 2005 Hayne and Callinan JJ. dismissed the application for special leave to appeal. Annexed hereto and marked “G” is a copy of the transcript of the publication of reasons and pronouncement of orders and sealed orders.
9. On 27 September 2005 the applicant filed a further application under s.39B Judiciary Act 1903 (Cth) in this Court seeking review of the same decision of the Tribunal handed down on 22 April 2004.”
On 24 October 2005 the respondent filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to hear this matter on the grounds that this Court lacks jurisdiction to review the decision made by the Tribunal pursuant to s.477(1A) of the Act [as it then was] which provided that an application to the Federal Magistrates Court under s.39 of the Judiciary Act 1903 (“the Judiciary Act”) and s.483A of the Act must be made within 28 days of notification of the Tribunal decision. Section 477(1A) was amended on 1 December 2005 by Migration Litigation Reform Act 2005, No. 137 to s.477(1) which is relevantly in the same terms. The Tribunal decision was handed down on 10 October 2002. The applicant concedes in this application now before the Court that he was notified of the Tribunal decision on
22 April 2004. The application before the Court now was filed on
27 September 2005, over 1 ¼ years after the expiry of the 28 day period provided in the legislation for the filing of an application for judicial review. The respondent contends by way of the Notice of Objection to Competency that the application involved a privative clause decision, it was not lodged within the 28 days of the applicant being notified of this decision and that by virtue of the relevant legislation the Court must not make an order which has the effect of allowing the applicant to lodge an application outside the period specified.At the first Court date in this matter, on 1 November 2005, the applicant, who appeared in person with a Tamil interpreter, and the Minister's legal representative, signed short minutes of order, which subsequently became orders of the Court, listing the respondent's Notice of Motion for hearing before me. It does not appear by way of these orders, or by way of the respondent's written submissions, that the respondent had sought to press the Notice of Objection to Competency. The respondent’s written submissions make reference to this issue at paragraph 13. But in the totality of the submissions it appears the issue of abuse of process is the primary response to the applicant’s application.
At the hearing before me the applicant was unrepresented. He appeared with the assistance of an interpreter in the Tamil language. Ms. Dejean appeared for the respondents.
As the hearing before me however Ms. Dejean sought to press the Notice of Objection to Competency as an initial submission. She sought leave to read her affidavit affirmed on 14 February 2006, which with annexures shows:
1)That the applicant was served, by way of postal communication dated 25 October 2005 sent to his residential address, with the respondent’s Notice of Objection to Competency, Notice of Motion and the affidavit of Hervee Dejean affirmed on
21 October 2005.2)That by letter dated 18 January 2006, sent to his residential address, the applicant was put on notice that the respondent’s Notice of Motion was listed for hearing before me on 23 February 2006.
Significantly, the latest correspondence received by the applicant from the respondent’s solicitors refers only to the Notice of Motion and makes no reference to the Notice of Objection to Competency. The orders made as a result of the short minutes of order singed by the parties on 1 November 2005 refer only to the Notice of Motion being set down for hearing today. In all the circumstances, the applicant in my view would have been on notice that today the respondent was seeking to press only the Notice of Motion. The applicant’s written submissions filed on 6 February 2006 do not address the issue of jurisdiction. In all I was prepared to proceed with the hearing on the Notice of Motion today. But if the respondent were to press the Notice of Objection to Competency then I would have granted the applicant an adjournment to prepare for this issue. I am on the view that the applicant was not expecting to address this issue today and it would be unfair to press this on him. On that basis therefore I proceeded to consider the matter raised as a result of the Notice of Motion. That is, essentially, that the applicant’s application is an abuse of process.
The applicant is a citizen of India who arrived in Australia on
12 March 2003 and applied for a protection visa on 25 March 2003. This was refused by a delegate of the respondent Minister. The applicant sought review by the Tribunal of that decision on 17 July 2003. The applicant was assisted by a migration agent in that application. The applicant’s claims before the Tribunal were contained in the material that he had submitted in both the application for a protection visa, and the application for review. The applicant gave oral evidence to the Tribunal on two occasions: 7 October 2003 and
6 February 2004.The Tribunal’s decision record is before me by way of the affidavit of Hervee Dejean affirmed on 21 October 2005 at Annexure “A”. The applicant’s claims to protection derive from his claim to be a Muslim from the State of Tamil Nadu in India, and that he had come into conflict with Hindu extremists in the State of Gujarat where he had temporarily located to attend a training programme. Following communal riots he fled, but claimed that he had become the target of Hindu extremists who had located his identity card and had mistakenly taken him for a “preacher of Islam” who had converted Hindus to Islam. He claimed further to have been bashed by Hindu militants. The Tribunal rejected the applicant’s claims to having been bashed by Hindu militants, on the basis that no corroborating evidence, and in particular no hospital or medical records, were produced to support this claim in circumstances where such evidence should, and could, have been obtainable. It found the applicant's explanations as to the absence of that evidence to be implausible (CB 132 to CB 134). Further, the Tribunal rejected two of the applicant’s related claims, namely that he lost his identity card during the attack by Hindu extremists, (this was the card that he said allowed his persecutors to trace him), and that he subsequently filed a complaint with the police. It noted an inconsistency with his claimed circumstances at the hearing to earlier statements that he left his identity card at home with his personal belongings.
Further, a document described as a “Certificate of Post” proffered by the applicant to demonstrate that he had sent a letter of complaint to the police, was found not to be authentic (CB 134 to CB 135). The Tribunal also rejected the applicant’s claim that he was wanted by Hindu extremists because it found he had spent only a very short period of time at the Islamic College where he said he had trained, and his profile was not sufficiently high as to provide a basis for this claim. It further found that a newspaper article to the contrary was not considered to be genuine (CB 135 to CB 136). On what was before it the Tribunal was not satisfied that at the applicant had a well founded fear of persecution based on a Refugee Convention reason and affirmed the decision to refuse him a protection visa.
The material before me indicates that:
1)On 4 May 2004 the applicant sought judicial review of the Tribunal decision by application to the Federal Magistrates Court (Annexure “B” to the affidavit of Hervee Dejean). That application disclosed no ground of review, but pursuant to directions the applicant filed an amended application that put forward four grounds of review. That application was heard before Smith FM on 30 November 2004, who dismissed the application (Annexure “C”).
2)On 20 December 2004 the applicant appealed the whole of the Judgement of Smith FM in the Federal Court of Australia (Annexure “D”). The applicant appeared before Conti J. on
12 May 2005 who dismissed the appeal with costs (Annexure “E”).3)On 6 June 2005 the applicant filed an application for special leave to appeal from the decision of the Federal Court in the High Court of Australia (Annexure “F”). On 8 September 2005 the High Court dismissed the application for special leave to appeal. The Transcript of proceedings in that matter is at Annexure “G” of the affidavit of Hervee Dejean. Their Honours dealt on that occasion with a number of applications for special leave to appeal of which this applicant’s application was but one, and found that each application, and the material filed in support of each application, was substantially identical. In particular I note from the Transcript:
“Three complaints are made about what was done in either the Courts below or the Tribunal. That the Tribunal had no evidence which supported its decision, that the Tribunal's decision was affected by errors of the kind identified Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966, 190 ALR 601 and that the Tribunal did not follow correct procedures. In none of the applications and in none of the material filed in support is there any attempt to identify a sufficient legal or factual basis in the particular case for any of these contentions or to relate the complaints made to what happened in the Courts below or in the Tribunal which in any event in each case appears to us to have been entirely orthodox and untainted by any discernible error.”
I also note, in particular, that this Transcript relates to proceedings on 8 September 2005 and relevantly that the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) was handed down previously on 18 May 2005.
In his application before me now the applicant puts forward as the grounds of the application:
1)That the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question and did not take into consideration “the oral evidence regarding my persecution”.
2)The Tribunal exceeded its jurisdiction by a denial of procedural fairness in that it failed to investigate his “genuine claims”.
3)That the Tribunal used country information without giving it proper weight and failed to take into consideration Amnesty International country information against him.
4)A reference to SAAP.
5)A statement that the Tribunal be joined as a party to the proceedings.
6)A reference to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (“S157”).
No particulars whatsoever are provided in support of these grounds. I note however the applicant’s written submissions which allege some error of law, and a failure to follow “proper procedures” as set out by the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (“Muin & Lie”). This seems to relate also to ground three in the application. There may also be an assertion of bias on the part of the Tribunal. As to the remainder the applicant clearly seeks impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
At the hearing before me on 23 February 2006 the matter that the applicant especially pressed was:
“My problem now is I face danger from Hindu terrorists.”
He requested that the Court examine his case again. I understood him to mean his “refugee” case. I indicated to the applicant that while I understood and appreciated what he was saying, that this could be of no assistance to him in this Court. The Court cannot review the merits of his refugee claims.
The applicant also stated that he had requested legal advice in this matter and had received a letter from the Court indicating that because he had already received legal advice in relation to this Tribunal decision, that he was ineligible for further assistance. The applicant confirmed that he had received the advice previously, but claimed that he did not “realise” that it was legal advice. This, in his view, was confirmed because the heading on the document stated:
“Private and Confidential”
He said, as such, that he “did not take much notice of it”.
I have some obvious difficulty in accepting this explanation as to why the applicant says he ignored the advice given. Why a letter from a lawyer concerning his case before a Court would be ignored because it was headed: “Private and Confidential” was not explained. But in any event, I explained to the applicant that the arranging and acting upon legal advice was a matter for him. The Court’s Legal Advice Scheme provided for advice to be given to an applicant complaining about a refugee decision, through a panel lawyer on the Court’s scheme. What an applicant did with that advice was a matter for him. I did not see this as an adequate reason for an adjournment to obtain further advice (if indeed this was what the applicant was seeking).
I accept the respondent’s written submissions as pressed by Ms. Dejean and, based on the material in the annexures to the affidavit of
21 October 2005, that the applicant’s application based on grounds of review 1, 2, 3 and 6 (as listed at paragraph 14 above) constitute an abuse of the process. This is on the basis that they represent an obvious attempt to re-litigate exactly the same kind of matters that were previously litigated and considered by a Federal Magistrate (whose Judgment was endorsed by a Federal Court Judge who dismissed the appeal from the Federal Magistrate’s Judgment). In this regard see: Walton v Gardener (1993) 177 CLR 378 at 393 (“Walton v Gardener”) and Applicant S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133 at [5] per Wilcox, Giles and Downes JJ.
The applicant clearly seeks to challenge the Tribunal's approach to the handling of the facts presented to it and makes assertions that it either failed to consider material facts, or it considered facts that were not material to the applicant's case. Firstly, I should note that the applicant has put forward these assertions with no particularity whatsoever and in some instances with no relevance to the situation as apparent from the material before me. For example, the applicant claims the Tribunal failed to “consider the Amnesty International country information”. There is nothing before me to show that either he, or his migration adviser at the time, made reference to, or put any such report before the Tribunal, or indeed sought to direct the Tribunal to consider any such report.
For the rest of the complaints in the application and written submissions, to the extent that these can be properly discerned from what the applicant has put forward, it is clear that there is nothing before me that shows that they were not put in previous litigation or alternatively that they were not matters that could not properly have been the subject of the earlier proceedings. Had the applicant exercised the appropriate reasonable diligence any such grounds might have been brought forward at those proceedings. I refer here to Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589. The applicant has not demonstrated, nor can I see, any special circumstances warranting any exemption from the relevant principal derived from that case.
To the extent that an allegation of bias may be discerned from the applicant’s written submissions, this also could have been raised in the earlier proceedings. Nor has the aapplicant, beyond the merest of assertions, put forward anything to show that the Tribunal was biased or that it did not properly have a fresh look at the application that he put before it.
The applicant's references to SAAP and S157 (see paragraph 14 at points 5) and 6) above) do not really raise grounds of complaint. The reference in ground 6) was specifically raised by the applicant in previous litigation (see ground 7 in the notice of appeal before the Federal Court). Ground 5 merely seeks to join the Tribunal as a party to the proceedings. Further, the applicant's reference to SAAP (ground 4 above) does not rise above anything other than a mere unparticularised reference. In any event it is clear that paragraph 13 of his written submissions appears to complain of the Tribunal's critical analysis and thought processes in reaching its decision. He states that his submission on this point is that despite his having attended the hearing before the Tribunal it was imperative that before the Tribunal made up its mind to dismiss his application, “such information” was required to be sent to the applicant pursuant to s.424A of the Act. As I understand it, the “such information” that he refers to is the Tribunal’s analysis of the application before coming to its ultimate decision.
In my view the Tribunal had no such obligation. The Tribunal’s thought processes are not information for the purposes of s.424A. Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason, or part of the reason, for affirming the decision under review. But clearly s.424A is concerned with knowledge of a fact or circumstance communicated to, or received, by the Tribunal. It is not concerned with the thought processes of the Tribunal which appears to be the applicant's real complaint before me. In the case of Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Sackville, J said at [54]:
“It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”
Therefore s.424A does not require the disclosure to an applicant the Tribunal's view of the material before it, including its view that the material he has put forward is insufficient or implausible. Such views do not constitute information in the sense referred to in s.424A(1): Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [25], NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [127] and VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82. Having read the Tribunal's decision and the remainder of the material before me I can only respectfully agree with Smith FM at paragraph [20] of his Honour's Judgement:
“…Moreover, the basis for the Tribunal's decision was its specific assessment of the applicant's own narrative, and it did not rely upon an assessment of country information. Similarly, the applicant's submission does not identify any adverse material which was not drawn to the applicant's attention and which it is alleged that the Tribunal relied on when rejecting the applicant's claim.”
I should also indicate for the applicant's benefit that the repeated bringing of similar applications where it would be vexatious or oppressive is also an abuse of process. The respondent, in submissions, has referred to Wilcox J. in Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 where His Honour found that the doctrine of “res judicata” applied in that case, but then went on to observe relevantly at [18]-[19]:
“[18] It will be apparent that the argument sought to be made confronts significant difficulties. However, I do not think it is appropriate to determine the present application by reference to those difficulties. The fact of the matter is that the present application seeks to re-litigate the same claim for relief that was sought in the earlier proceeding. It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced. The principle of res judicata applies to this case.
[19] If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393.”
In Walton v Gardiner, per their Honours Mason CJ, Deane and Dawson JJ, at [22]:
“Yet again, proceedings before the 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.”
There is a clear underlying public interest that I ask the applicant to consider, and that is, that there be finality in litigation and that a party should not be repeatedly vexed in the same matter. In this regard, the respondent has also referred me to Madgwick J. in SZBJM vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 where His Honour said:
“Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way with legal advice to a Full Court of this Court and thereafter, it seems without such advice, to the High Court, it is high time that all this litigation was put to an end.”
The applicant has already previously brought an application before this Court to complain about the Tribunal’s decision. He appealed the Judgment of this Court in this Court, and then has been to the High Court of Australia. He now seeks, without real attempt to put forward, even from his perspective, anything new, to re-litigate exactly the same matter essentially in the same fashion as before.
I should just note in this regard that the applicant's application and submissions to a large extent appear to be a cut and paste of many other applications and submissions put forward by applicants seeking to challenge Tribunal decisions in this Court. I note in particular that this was a similar observation made by the Smith FM when he first considered the applicant’s complaint. In SZDLQ v Minister for Immigration [2004] FMCA 947 at [18]:
“At the commencement of today's hearing the applicant filed a document headed, "Outline of Submissions" which appears to be an extract from submissions presented in other cases. The author of the document shows no sign of having addressed the present Tribunal's reasoning, and indeed the document appears to extract submissions made for a female applicant in relation to Bangladesh.”
While the applicant before me now seems to have addressed the issue of the references to a “female applicant”, it does not appear that he heeded Smith FM’s comments in many other respects. For example, the applicant makes reference in written submissions now to Muin & Lie. This was a reference which he sought to raise before the Courts previously. See in particular ground 3 in the notice of appeal at Annexure “D” of the affidavit of Hervee Dejean.
I also accept as relevant the respondent’s reference to VWZG vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018 at [14] per Weinberg J:
“In my view the current 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
· in all, the applicant has brought seven proceedings in relation to the same RRT decision, three of which he has chosen to discontinue. Having regard to his history of instituting proceedings, only to subsequently abandon them, I am prepared to infer that he has brought this application for the collateral purpose of extending the period of his stay in this country.”
There is clearly an underlying public interest in the finality of litigation. It is unjustifiable and vexatious for the respondent to be repeatedly made to meet allegations of error which have been dealt with and dismissed.
In all, therefore, the applicant has now sought again, with in substance very little, if any, change from his previous effort, to challenge the Tribunal's decision for a second time. The grounds that he puts forward now cannot be made out and the prospects of success of any of these grounds, even if the applicant were to have the benefit of the Court’s re-consideration at a final hearing. Even if the matter had gone to a final hearing the respondent’s Notice of Objection to Competency would have been considered and on what is before me now the effect of the judgment of Smith FM and the dismissal of the appeal against his Judgment by Conti J. is that the Tribunal’s decision has already been determined to be a privative clause decision and the effect of the Federal Court Judgment is that this determination is binding on me: See SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598 and SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498. It cannot be said that the application would have any reasonable prospect of success. For all the reasons above this is clearly an abuse of process.
I also note in particular the comments taken from the Transcript (in dismissing the applicant's application for leave) before the High Court, made by their Honours Hayne and Callinan JJ.:
“In none of the applications and in none of the material filed in support is there any attempt to identify a sufficient legal or factual basis in the particular case for any of these contentions or to relate the complaints made to what happened in the courts below or in the Tribunal, which in any event in each case appears to us depend entirely orthodox and untainted by any discernible error.”
I uphold the respondent’s Notice of Motion and dismiss the applicant’s application as an abuse of process pursuant to Rule 13.10(c) of the Rules. I will make the orders sought by the respondent.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 23 March 2006
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