SZDPO v Minister for Immigration
[2005] FMCA 1932
•12 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDPO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1932 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicants are citizens of India – where decision of RRT previously found to be a privative clause decision by Federal Magistrates Court – where appeal dismissed by Federal Court – where application for special leave dismissed by High Court. PRACTICE & PROCEDURE – Res Judicata – where application previously heard and dismissed by Federal Magistrates Court – where appeal previously dismissed – third applicant a child – litigation guardian – competency – objection to competency – where RRT handed down its decision on 5 May 2004 – application not filed until 2 November 2005 – abuse of process. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 477(1A) Federal Magistrates Act 1999 (Cth) s.15 |
| Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZDPO & ORS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 159 SZDPO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 877 Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 |
| First Applicant: | SZDPO |
| Second Applicant: | SZDPP |
| Third Applicant: | SZDPQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3192 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 December 2005 |
| Date of Last Submission: | 12 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That SZDPO is appointed litigation guardian for SZDPQ.
The application is not competent.
The application is summarily dismissed as an abuse of the process of the Court.
The Applicant is restrained from filing or attempting to file any further application for review of the decision of the Refugee Review Tribunal made on 5th May 2004 without leave of the Court.
No application made by the Applicant for judicial review made
5th May 2004 is to be accepted for filing without leave of the Court.
The First and Second Applicants are to pay the First Respondent’s costs on an indemnity basis fixed in the sum of $3,900.00 together with Court costs of $288.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3192 of 2005
| SZDPO |
First Applicant
| SZDPP |
Second Applicant
| SZDPQ |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 5th May 2004. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on
2nd December 2003.
The applicants arrived in Australia on 18th November 2003 and applied for protection visas on 2nd December 2003. Their joint application was refused that day. On 2nd January 2004 the applicants sought a review of that decision by the Refugee Review Tribunal. The Tribunal heard oral evidence from the first applicant on 5th May 2004 and made its decision that same day. The Tribunal affirmed the decision of the delegate of the Minister not to grant protection visas.
The solicitors for the respondent Minister have filed a notice of objection to competency. The notice claims that the decision of the Tribunal is a privative clause decision as defined by sub-s.474(2) of the Migration Act 1958. Because the application for judicial review was filed on 2nd November 2005 it does not comply with the requirements of s.477(1A) of the Migration Act which provides that an application to the Federal Magistrates Court for review of a privative clause decision must be made within 28 days of the notification of the decision.
In this case the applicants were notified on the day the decision was made; 5th May 2004. In this case it is not in issue that the decision of the Tribunal is a privative clause decision because in previous proceedings before this Court Mowbray FM made that very finding on 11th February 2005 (see SZDPO & Ors v Minister for Immigration [2005] FMCA 159). The applicants appealed by means of a notice of appeal filed on 22nd February 2005. That appeal was dismissed by Stone J after a hearing on 28th June 2005 (see SZDPO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 877).
The applicants then sought special leave to appeal to the High Court of Australia by filing an application on 12th July 2005.
On 20th October 2005 McHugh and Heydon JJ dismissed that application (see SZDPO & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 867).
The applicants then filed this application on 2nd November 2005. As a result, the Minister's solicitors have filed an application seeking summary dismissal of the application as an abuse of process.
They also seek costs and an order that no further application for review of this decision should be accepted for filing without leave of this Court.
The respondent solicitors rely on an affidavit sworn by Zoë Elizabeth Brauer on 8th December 2005 which sets out details of the proceedings before the Refugee Review Tribunal, the Federal Magistrates Court, the Federal Court and the High Court. I note that this application before this Court was filed on 2nd November 2005.
There is no issue as to the fact that the decision of the Refugee Review Tribunal has already been the subject of judicial review by this Court. An appeal against this Court's decision was unsuccessful and an application for special leave to appeal to the High Court of Australia has been unsuccessful. The applicant did not disclose any of these earlier proceedings in the application. He did not mention them in his outline of submissions filed today.
In the applicant's outline of submissions he sets out a number of grounds which he claims represent errors made by the Refugee Review Tribunal. Those grounds can be summarised as the following: (1) The Refugee Review Tribunal made a jurisdictional error in that the applicant was denied procedural fairness and natural justice. Particulars of that claim include an assertion of a breach of s.424A of the Migration Act. The applicant also claims that the Tribunal fell into error in that it did not correctly interpret and apply the definition of "refugee" and misapplied the definition of "persecution" and the notion of well-founded fear for the purpose of the Refugees Convention.
The solicitors for the Minister submit that the doctrine of res judicata applies. In other words, that the review of the decision of the Refugee Review Tribunal has already been heard and decided. Appeals against that decision have been unsuccessful. For the respondent Minister Ms Brauer submits that any grounds put at this stage that are fresh grounds should not entitle the applicant to relief because he had the opportunity to argue those grounds in an earlier proceeding. She submits that the applicant has not, in any event, submitted any fresh grounds.
I have had the opportunity of reading through the grounds set out in the applicant's submission today. I have also had the benefit of asking him questions about this submission and hearing his answers. His answers contained concessions that some matters had been already dealt with but mainly dealt with a request for a reassessment of the factual issues before the Court. The applicant conceded that he and his wife and child had come to Australia from New Zealand where they had lived for a couple of years. Prior to that they had lived in India and it was there that they allege the persecution took place. It certainly is not part of their claim that they were persecuted in New Zealand.
In considering the applicant's submissions I note that the grounds of the denial of procedural fairness and a denial of natural justice were argued before Mowbray FM earlier this year. I also note that the applicant's complaints about country information have been aired in previous proceedings. The applicant's complaints of a breach of s.424A of the Act relate to an alleged failure by the Tribunal to provide him with particulars and allow him to comment on the Tribunal's finding on the implausibility of his evidence to the Tribunal and a complaint that he was not given the opportunity to comment on items of country information. In neither case does s.424A apply.
Where country information relates not to the applicant or applicants specifically, it is protected by the exception section 424A(3)(b).
A Tribunal's finding that a person's evidence is implausible is not information for the purpose of the section. It is entirely a matter for the Tribunal whether the applicant or any person's evidence is found to be plausible or implausible.
Dealing with the applicant's claim of the alleged failure by the Tribunal to interpret and apply the definitions of "refugee", "persecution" and "well-founded fear", I note that the applicant has previously argued these grounds in earlier proceedings before this Court. The doctrine of res judicata must certainly apply as a bar to arguing that case before the Court again. Indeed, I note that one paragraph in the applicant's submissions goes as follows:
No such adverse information were put to the applicant or his wife until the hearing and the Tribunal has decided the matter without giving the applicant further opportunity to comment on the adversity and the implausibility that were repeatedly mentioned in the decision. This was totally a ridiculous action performed by an independent body like the RRT.
I would comment at this stage that the first applicant's wife did not attend the RRT hearing, just as she has not attended Court today.
No doubt she is busy attending to the care of the parties' young child.
The paragraph to which I have referred appears in a somewhat truncated form in the amended application filed by the applicants in the earlier proceedings on 10th November 2004. The paragraph in the earlier proceeding says:
No such adverse information was put to the applicant until the hearing while on the same day the Tribunal also decided the matter without giving the applicant further opportunity. This was totally a ridiculous action performed by an independent body like the RRT. The applicant would have forwarded some previous relevant RRT decisions and independent information in relation to this issue on contrary to the Tribunal's comment.
The fact is that the application filed by the applicants in these proceedings contains no more than a rehash of grounds previously argued before this Court. That decision was unfavourable to the applicants. The applicants appealed against that decision and have been unsuccessful. There is nothing new in this application. It is no more than a further attempt to relitigate something that has already been litigated to finality.
I asked the applicant whether there was any significance in the fact that each step in this chain of litigation has taken place such a short time after the last Court hearing. It is easy to infer that whilst the applicant could give no explanation, the explanation is that it is designed to bring about yet another extension of a bridging visa. Bridging visas are usually in force until 28 days after the next Court hearing.
The application has been brought for no other purpose than that. It is quite clearly an abuse of process.
Applications which seek to relitigate matters that have already been heard and finalised constitute an abuse of process and should be brought to an end as soon as possible. Quite clearly the application is also out of time under sub-s.477(1A).
The Minister's solicitors rely on ss.14 and 15 of the Federal Magistrates Court Act in support of their application for orders restricting the applicant's right to file further proceedings without leave. To my mind, s.15 is the appropriate section which provides a basis for the Court's r.13.10 and 13.11. The Federal Court in Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 has held that a Court created by statute must look to the statute to give it the power to make orders to deal with an abuse of its own process. It seems to me that s.15 of the Federal Magistrates Act would apply in the same way.
I am satisfied that this application is not competent in that it has been filed out of time. I am satisfied that it is an abuse of process. I am satisfied that the application should be dismissed and that s.15 of the Federal Magistrates Act gives the Court power to make orders restricting the filing of further proceedings. I propose to make such orders.
There is an application for costs on an indemnity basis. The applicant says that he cannot afford to pay the respondent's costs as he is the only one working, his wife is not working. The substantive application is to be dismissed and it has been found to be an abuse of process. To my mind, it is appropriate for the first and second applicants, who are adults, to be the subject of a costs order. I do not propose to make a costs order against the parties' child who is an infant. That child has played no part in the proceedings and to my mind a costs order would not be fair.
In cases such as this it is appropriate for costs to be awarded on an indemnity basis rather than a party-party basis. The decision of Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 makes that quite clear. The applicants also received a waiver of the $288.00 filing fee. As the application has been found to be an abuse of process, to my mind it is inappropriate for the Court to permit an abuse of its own process free of charge. I revoke the waiver of the filing fee.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 December 2005
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