SZDNK v Minister for Immigration
[2004] FMCA 1080
•20 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDNK v MINISTER FOR IMMIGRATION | [2004] FMCA 1080 |
| MIGRATION – applicant failed to comply with orders of Registrar concerning filing of amended application – no arguable case of jurisdictional error on part of Refugee Review Tribunal – application dismissed. |
Federal Magistrates Court Rules 2001 (Cth), rule 13.10(a), 13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Schedule 2 Item 010.511(b)(vi)
Migration Act 1958 (Cth), ss.189, 196(1)(a), 196(1)(c),196(3)
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
Al-Kateb v Godwin (2004) 208 ALR 124
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZDNK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG3216 of 2004 |
| Delivered on: | 20 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 20 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms D Watson of Australian Government Solicitor |
ORDERS
The application is dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) as disclosing no reasonable cause of action.
In the alternative, the application is dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) as being an abuse of process.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3216 of 2004
| SZDNK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the respondent as a Notice of Motion seeking the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth). Both parties appeared. The applicant is a self represented litigant and had the assistance of an interpreter. The respondent filed written submissions and an affidavit in response to this matter being listed for hearing of the Motion.
I believe it is in both parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
By Notice of Motion filed on 17 December 2004 the respondent moves the Court for orders that the proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) as disclosing no reasonable cause of action and in the alternative, the proceedings be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) for being an abuse of process. The substantive proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 1 November 2004.
For the purpose of this Motion the respondent tenders and applies for an affidavit of Dale Jennifer Watson sworn on 16 November 2004 (“the affidavit of Ms Watson”) to be admitted into evidence.
Background
The applicant arrived in Australia on 23 July 2003. He was the holder of a subclass 456 visa, otherwise referred to as a short stay business visa. That visa was due to expire on 23 October 2003. On 4 September 2003 the applicant lodged an application for a protection visa with the Department Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”) and was granted a bridging visa on the basis of that application. On 30 September 2003 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) made the decision to cancel the applicant’s short stay business visa. As a consequence of that decision by virtue of Item 010.511(b)(vi) of Schedule 2 to the Migration Regulations 1994 (Cth) the applicant’s bridging visa ceased to have effect from the date of that cancellation and he was detained under s.189 of the Act (see the affidavit of Ms Watson).
Litigation history
A brief summary of the litigation history in the proceedings is as follows:
a)On 10 October 2003 the applicant’s application for a protection visa was refused by the delegate.
b)The applicant sought a review of the delegate’s decision in the Refugee Review Tribunal. The Refugee Review Tribunal made a decision on 28 November 2003 to affirm the decision of the delegate to refuse to grant a protection visa and that decision was handed down on 3 December 2003.
c)On 16 March 2004 the applicant lodged an application for review in the Migration Review Tribunal in relation to the decision to cancel his short stay business visa. The application was taken to have been validly lodged by that Tribunal due to an error of notification of the cancellation decision.
d)The applicant commenced proceedings in the Federal Magistrates Court on 7 May 2004.
e)The applicant raised the issue of his continued detention and it was clarified with the applicant at directions hearings on 26 May 2004 and 16 June 2004 that he wanted to challenge the decision to cancel his short stay business visa.
f)The application for review was listed for hearing before a Federal Magistrate on 4 August 2004 and the application was subsequently dismissed with costs on the day of the hearing.
g)On 23 August 2004 the applicant appealed the decision of the Federal Magistrate to the Federal Court.
h)On 20 September 2004 the Migration Review Tribunal handed down its decision setting aside the cancellation decision in relation to the applicant’s short stay business visa.
i)On 19 October 2004 Justice Branson made orders in the appeal that the appeal be dismissed. The basis for this decision was that there was no utility in the proceedings as the subject cancellation decision had been set aside by the Migration Review Tribunal.
Application for judicial review
On 1 November June 2004 the applicant filed an application made under s.39B of the Judiciary Act 1903 (Cth) seeking a review of the Refugee Review Tribunal decision made on 28 November 2003. Under the heading “Grounds of the Application” the following statement appears:
“30/09/2003. The DIMIA officers [name] and [name] locked me in the room and forced me to sign the paper and cancelled my visa.
I am an uneducated and innocent person. I don’t know how DIMIA was holding my passport and refugee ticket and I don’t know who was the person ripped off the paper from my passport and how it’s happened. Now I am detained since 1 year and 1 month. I don’t have any one to help me to release from detention centre. I have been under extreme stress and depression. I feel terrible in here and my current mental situation is not very good. I hate myself so I have no hope for my life. Sometimes I think to suicide. Therefore I request please please give me hearing as soon as possible. Thank you very much.”
Respondent’s submissions
Ms D Watson, Solicitor appearing for the respondent, filed written submissions prior to the hearing and assisted the Court during the hearing with oral submissions to supplement those previously filed. The respondent contended that it would appear that the two issues to which the applicant brings before the Court are the cancellation of his short stay business visa and his continued detention.
The applicant has previously brought proceedings in this Court in relation to the issue of the cancellation of his short stay business visa. This decision has already been the subject of a judgment by Federal Magistrate Raphael (see the affidavit of Ms Watson). Furthermore, the cancellation decision has been set aside by the Migration Review Tribunal and as a consequence, the applicant’s appeal from the decision of Federal Magistrate Raphael was dismissed. It was submitted that there is no longer any operative decision by this Court to review.
The respondent had filed a Notice of Motion seeking summary dismissal on the basis that the application is an abuse of process or otherwise does not disclose a reasonable cause of action. The respondent submitted that the applicant is estopped from challenging the cancellation decision in this Court due to the principles of res judicata: see Wong v Minister for Immigration & Multicultural & Indigenous Affairs, as the applicant is seeking to raise the identical arguments which were previously raised before Federal Magistrate Raphael. In the alternative, if the applicant now seeks to raise a new ground of review, the Court should refuse to grant the application applying the principles of Anshun estoppel. Furthermore, the application insofar as it relates to the cancellation decision should be viewed as an abuse of process and should be dismissed on this basis.
It was submitted that in relation to the applicant’s continued detention, the application does not raise any recognisable ground of review but is limited to a complaint about the fact of his detention. It was submitted that the application should be dismissed as disclosing no reasonable cause of action. In any event, it was submitted, the applicant’s detention is authorised as he does not hold a valid visa pursuant to ss.189 and 196 of the Act. Although the previous cancellation decision has been set aside, that visa was a short stay visa which was due to expire on 23 October 2003. The applicant does not currently hold a valid visa and, it is submitted, must therefore be detained until he is either removed under s.189 of the Act or granted a visa: see s.196(1)(a) and (c) and s.196(3) of the Act; Al-Kateb v Godwin.
Reasons
The applicant in the substantive proceedings was self represented and has made no oral or written submissions. The grounds in his original application are extremely vague and unparticularised. I am cognisant of the dilemma that the applicant faces in being unable to clearly articulate the issues he wishes to ventilate. When an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. When I invited the applicant to make any submissions in relation to the Motion before the Court he indicated his desire to return to India, his confusion as to why he continued to be held in detention and his unfair treatment at the hands of the person he had arrangements with to work as a cook in a restaurant in Sydney. The applicant did not respond to any questions directed at the issues arising from his application filed on 1 November 2004.
The application does not disclose any grounds for judicial review of the Refugee Review Tribunal decision on 28 November 2003 and the applicant made no reference to that decision when he was invited to make submissions or comments on his application during the hearing before me. I accept the submissions by the respondent solicitor that the applicant is estopped from challenging the decision to cancel his short stay business visa due to the principles of res judicata. The pleadings before the Court are so vague that it is difficult to be convinced from the grounds contained within those pleadings that the applicant is attempting to challenge the outcome of that decision again. However, the date and reference number clearly refer to that decision. In the absence of any contrary statement from the applicant, that remains the only conclusion that can be drawn.
I accept the reasons for the applicant to be held in detention and that no argument is raised by him to challenge his detention. I have formed the view that providing the applicant with a further opportunity to replead his application would be of little or no assistance to the applicant’s overall objectives. I am not satisfied that any benefit will be served by allowing this application to proceed beyond today because of the legal bars to the proceeding because of the principles of res judicata and the applicant’s failure to be able to demonstrate the purpose of pursuing this application any further. The contents of the substantive application appears to be contrary to the objectives of the applicant as he expressed them from the bar table.
Conclusion
The Notice of Motion brought by the respondent should be upheld and the substantive proceedings be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 February 2005
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