SZDUA v Minister for Immigration

[2007] FMCA 1916

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDUA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1916

MIGRATION – Abuse of process, vexatious litigant – not continue proceedings without leave – not file any further proceedings without leave – registry not to accept further applications for filing without leave.

Federal Magistrates Court Rules 2001, rr.13.10, 13.11, 44.06(2)(c), 44.12(1)(a)

Freeman (a bankrupt) v National Australia Bank Ltd & Anor (2006) 230 ALR 213
SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214

Applicant: SZDUA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1850 of 2007

Judgment of: Turner FM

Hearing date: 12 October 2007

Date of last submission: 12 October 2007

Delivered at: Sydney

Delivered on: 12 October 2007

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondents: Ms G. Carroll of Australian Government Solicitor

ORDERS

1. The application is dismissed generally pursuant to Rule 13.10.

2. The application is dismissed pursuant to Rules 13.10(b) and (c).

3. Pursuant to Rule 13.11(1)(a), any proceeding instituted by the applicant in relation to the decision of the delegate dated 19 November 1999, or the decisions of the Refugee Review Tribunal dated 28 March 2003,19 April 2004 may not be continued without leave of the Court.

4. Pursuant to Rule 13.11(1)(b), the applicant may not institute, or have instituted on his behalf, any proceeding relating to the decision of the delegate dated 19 November 1999, or the decisions of the Refugee Review Tribunal dated 28 March 2003, 19 April 2004, without leave of the Court.

5. The Registry of the Court is not to accept for filing any further applications for review of the decision of the delegate dated 19 November 1999, or the decisions of the Refugee Review Tribunal dated 28 March 2003, 19 April 2004, without the prior leave of the Court.

6. The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1850 of 2007

SZDUA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 19 April 2004, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

Background

1. The first respondent submits that:

   ·The application is an abuse of the process of the Court: r.13.10(c);

   ·There have been other judicial review proceedings in relation to the decision: r.44.06(2)(c); and

   ·The application does not raise an arguable case for the relief claimed: r.44.12(1)(a).

2. The applicant’s litigation history is set out below (extracted from the Affidavit of Laura Gazi, sworn 12 July 2007):

DATE	EVENT
14.10.99	Application for protection visa lodged (Pseudonym SZDUA)
19.11.99	Application refused by delegate
28.03.03	RRT affirms decision of the delegate
10.09.03	Matter remitted to the RRT by the Federal Court
19.04.04	Second RRT affirms decision of the delegate
07.06.04	Application for judicial review lodged with the Federal Magistrates Court (SYG 1745/2004).
21.04.05	Application dismissed by Lloyd-Jones FM
09.05.05	Notice of Appeal filed in the Federal Court (SYG NSD 717/2005)
01.08.05	Appeal dismissed by Madgwick J
25.08.05	Application for special leave to appeal filed in the High Court  (S391/2005)
15.12.05	Application for special leave to appeal dismissed by Gummow and Heydon JJ
12.01.06	Application for judicial review of the delegate’s decision lodged with the Federal Magistrates Court (SYG 115/2006). Applicant given pseudonym SZICI
06.03.06	Application dismissed by Raphael FM
27.03.06	Application for leave to appeal filed in the Federal Court (NSD 622/2006)
14.06.06	Application for leave to appeal dismissed by Moore J
10.07.06	Application for special leave to appeal filed in the High Court  (S233/2006)
23.05.07	Application for special leave to appeal dismissed by Kirby and Callinan JJ
13.06.07	Present application filed with the Federal Magistrates Court

Issues for determination

1. The issues before the Court are as follows:

   ·Whether the application filed on 13 June 2007 is an abuse of the process of the Court: r.13.10(c);

   ·Whether the present proceeding is vexatious: r.13.10(b).

The application

1. In his application, the applicant set out three grounds as follows:

   (1)The decision is not a decision within the meaning of the Migration Act 1958.

   (2)The decision does not bar the applicant under s.48B of the Migration Act 1958.

   (3)The decision of the Tribunal now falls under the application of SZEEU and SAAP.

2. By r.13.10 the Court may order that a proceeding be dismissed generally or in relation to any claim for relief if the Court is satisfied that:

   (a)the proceeding is frivolous or vexatious; or

   (b)the proceeding is an abuse of the process of the Court.

3. The Court refers to the decision in Freeman (a bankrupt) v National Australia Bank Ltd & Anor (2006) 230 ALR 213 at [19] and [22] as follows:

   [19] Having examined the meaning of “habitually and persistently” and “vexatious” in O 21 r 2, the primary judge said (at [26]–[27]):

   [26] The question of whether the legal proceedings are in fact “vexatious” or “instituted without reasonable cause” is also an objective one. It is immaterial whether Mr Freeman believes in the justice of his argument or whether he understands that the argument has been authoritatively rejected. Continual attempts to re-litigate matters raised and rejected on previous occasions constitutes an abuse of process and have been found to satisfy the tests of “vexatious” or “instituted without reasonable cause” within the meaning of O 21 …

   [27] The material before the Court demonstrates that Mr Freeman has made, and continues to make, strenuous efforts to re-ventilate in this Court the matters which have been determined against him on a number of occasions, both in this Court and in the Supreme Court of Queensland….

   … … …

   [22] Order 21 r 2 [of the Rules of the Federal Court of Australia] provide[d]:

   Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court.

4. The Court finds that the meaning of “vexatious” and “abuse of process” in r.13.10 of the Court’s rules is informed by the definition of those terms in Freeman (ante). Continual attempts to relitigate matters raised and rejected on previous occassions constiutes an abuse of process and is vexatious within r.13.10.

5. The applicant made an application for judicial review to this Court on 7 June 2004, on 12 January 2006, and on 13 June 2007; appeals were lodged in the Federal Court of Australia on 9 May 2005 and 27 March 2006; applications for special leave to appeal were filed in the High Court of Australia on 25 August 2005 and 10 July 2006. All of these cases failed; the application filed on 13 June 2007 is being addressed in this decision.

6. The applicant is making continual attempts to relitigate matters raised and rejected on previous occassions. The current proceeding before the Court is vexatious, and it is dismissed pursuant to r.13.10(b). The current proceeding is an abuse of process, and it is dismissed pursuant to r.13.10(c).

7. The Court finds that the applicant has instituted vexatious proceedings and is satisfied that the applicant has habitually, persistently, and without reasonable grounds, instituted other vexatious proceedings in this Court, and in the Federal Court of Australia, and in the High Court of Australia.

8. The Court therefore orders pursuant to r.13.11(1)(a) that any proceeding instituted by the applicant in relation to the decisions mentioned above, may not be continued without leave of the Court.

9. The Court orders purusant to r.13.11(1)(b) that the applicant may not institute, or have instituted on his behalf, any proceeding relating to the decisions mentioned above without leave of the Court.

10. The Court directs that the Registry of the Court is not to accept for filing any further applications for review of the decision of the delegate dated 19 November 1999, or the subsequent decisions of the Tribunal, without the prior leave of the Court. Such a direction is within the power of the Court: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 at [27].

11. These orders and directions dispose of the case. The Court is not called on to deal with the grounds in the application or decide whether there is a reasonable prospect of the applicant successfully prosecuting the proceeding or claim.

12. The applicant alleges that the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (18 May 2005) had not been decided when the matter was last before this Court, and that he should therefore be able to conduct these proceedings.

13. SAAP was decided on 18 May 2005, which is before the High Court dismissed the applicant’s application for special leave on 15 December 2005. It was decided before Federal Magistrate Raphael dismissed an application for judicial review on 6 March 2006; before Justice Moore dismissed an application for leave to appeal on 14 June 2006; and before the High Court dismissed another application for special leave on 23 May 2007. The applicant claims that he had not had an opportunity to present arguments based on SAAP – clearly that is not so.

14. The applicant alleges that the decision of the Tribunal now falls under the decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. That decision was handed down on 24 February 2006 which was before Federal Magistrate Raphael dismissed an application for judicial review on 6 March 2006; before Justice Moore dismissed an application for leave to appeal on 14 June 2006; and before the High Court dismissed the application for special leave to appeal on 13 June 2007. The applicant therefore has had full opportunity to rely on the decision in SZEEU.

Conclusion

1. Pursuant to Rule 13.10, the application is dismissed generally.

2. The matter is also dismissed pursuant to Rules 13.10(b) and (c).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate:  M Giang

Date:  16 November 2007