SZELL v Minister for Immigration
[2005] FMCA 174
•18 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZELL v MINISTER FOR IMMIGRATION | [2005] FMCA 174 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – Notice of Objection to Competency upheld and substantive application dismissed. |
Migration Act 1958 (Cth), ss.91X, 424(3)(a), 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court of Australia Rules 2001 (Cth), r.13.10(a), 13.10(c)
Samson v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 837
SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 377
SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650
SZAWW v Minister for Immigration & Multicultural Affairs [2003] FMCA 479
Walton v Gardiner (1993) 177 CLR 378
NAYF v Minister for Immigration & Multicultural Affairs [2004] FCA 196.
SZBJM v Minister for Immigration & Multicultural Affairs [2004] FCA 404
Kosi v Minister for Immigration [2003] FMCA 340
NALE v Minister for Immigration & Multicultural Affairs [2003] FMCA 366
Lee v Minister for Immigration [2002] FMCA 279
Applicant A135/2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 708
Applicant A163 of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 677
Xie v Immigration Department [1999] FCA 365
SZBWF v Minister for Immigration [2004] FMCA 83
Murex Diagnostics Australia Pty Ltd v Chiron Corp (1995) FCR 194
Chung v University of Sydney [2001] FMCA 94
Yo Han Chung v University of Sydney [2002] FCA 186
| Applicant: | SZELL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2915 of 2004 |
| Delivered on: | 18 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 18 January 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Nepalese interpreter.
| Solicitors for the Respondent: | Ms A Gibson of Sparke Helmore |
ORDERS
The Notice of Motion is upheld and the substantive application is dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court of Australia Rules 2001 (Cth) as an abuse of process of the Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2915 of 2004
| SZELL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court as a Notice of Motion seeking that the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”).
As the substantive hearing in this matter had been listed for 25 May 2005 and there were serious deficiencies in the pleadings in that orders to file amended pleadings had not been complied with, I believed it was 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 an application filed on 3 December 2004 the respondent moves the Court for orders that the proceedings be dismissed on the grounds that pursuant to Part 13, Rule 13.10(c) of the Rules, the proceedings are an abuse of process of the Court, and pursuant to Part 13, Rule 13.10(a) of the Rules, the application fails to disclose a reasonable cause of action.
These 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 23 September 2004. For the purpose of this Notice of Motion, the respondent tendered and applied for the affidavit of Emma Jayne Knight, sworn on 2 December 2004, (“the affidavit of Ms Knight”) to be admitted into evidence. A Court Book (“CB”) prepared by the respondent’s solicitors, was filed and served on 1 November 2004.
Applicant’s background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZELL”.
The applicant, who claimed to be a citizen of India, arrived in Australia on 18 March 2001. On 27 April 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 29 November 2001 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) refused to grant the protection visa and on 14 December 2001 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.
The applicant was born in December 1972 in India and is a Nepalese Hindu. He arrived in Australia on an Indian passport under his own name. The applicant claimed he lived at the same address in Mumbai until 1995 when he went to the United Arab Emirates, seeking asylum and work. He claimed he was harassed and mistreated in India because of his race and ethnic background.
Litigation history
A brief summary of the litigation history of this applicant is as follows:
a)On 27 April 2001 the applicant lodged an application for a protection (Class XA) visa with the Department.
b)On 29 November 2001 the delegate made the decision to refuse to grant the applicant a protection visa.
c)On 14 December 2001 the applicant lodged an application for review of the delegate’s decision with the Tribunal.
d)On 14 November 2002 the Tribunal, constituted by Dr Pamela Gutman, handed down a decision to affirm the delegate’s decision to refuse to grant the applicant a protection visa.
e)On 23 December 2002 the applicant filed an affidavit of Mark Willis Clisby, annexing a draft order nisi at the Adelaide Registry of the High Court of Australia seeking a review of the Tribunal’s decision handed down on 10 December 2001. Those proceedings were allocated High Court Proceedings No. A389 of 2002.
f)On 7 February 2003 the Honourable Justice Haynes ordered that the matter be remitted to the Federal Court. The matter was allocated Federal Court Proceedings No. S342 of 2003.
g)On 7 July 2003 the Honourable Justice Selway made an order as to the further progress of the matter.
h)On 8 September 2003 the Honourable Justice Lander ordered that the application be dismissed with costs for failing to comply with the orders of the Court.
Application for review of the Tribunal’s decision
On 23 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
“1.The [Tribunal] in its decision … in breach of the rules of procedural fairness took into account material directly relevant and adverse to the [applicant’s] claim of refugee status without giving him notice of the material or any opportunity to address it.
The (Tribunal) during the hearing of the review of the decision of the delegate of the (secretary of the department) in breach of the rules of procedural fairness failed to put to the (applicant) such country information as the (tribunal) proposed to rely upon in coming to a decision adverse to the (applicant).
The (Tribunal) in its decision … in breach of the rules of procedural fairness relied in an impermissible way upon certain submissions of the (secretary of the department) relevant to the review by the (tribunal) of the decision of the (secretary of the department).
The (secretary of the department) failed to provide the tribunal documents or part of documents in the possession or control of the (secretary of the department) relevant to the review by the (tribunal) of the decision of the (secretary of the department) and upon which the (tribunal) did rely in its decision.” (Errors included)
Notice of Objection to Competency
On 11 October 2004 the respondent’s solicitors filed a Notice of Objection to Competency in the following terms:
1.That the application for judicial review filed on 23 September 2004 be dismissed on the grounds that:
a)Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth), the proceedings are an abuse of process of the Court.
b)Pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth), the application fails to disclose a reasonable cause of action.
2.That no further application by the applicant to review the decision of the Refugee Review Tribunal dated 14 November 2002 be accepted for filing except with the leave of the Court.
Respondent’s application
Ms A Gibson, Solicitor, appearing for the respondent, filed and served written submissions on 14 January 2005 which contained the following contentions:
a)The respondent moved on its notice of objection to competency filed on 11 October 2004 and contended that this Court did not have jurisdiction to review the Tribunal’s decision as s.477(1A) of the Act provided that an application to the Federal Magistrates Court under s.39B of the Judiciary Act 1903 and s.483A of the Act must be made within 28 days of notification of the Tribunal’s decision.
b)The Tribunal’s rejection of the applicant’s claims was open to it for the reasons it gave. Its factual findings about the applicant’s claims to fear harm because of his ethnicity and political involvement and that he could relocate reveal no error. As the decision was absent any jurisdictional error, it was to be properly regarded as a “privative clause decision”. Accordingly, the time limits in s.477(1A) of the Act apply and the Court does not have jurisdiction to review the Tribunal’s decision. For this reason, the respondent’s notice of objection to competency filed on
11 October 2004 ought to be upheld.c)Alternatively, the respondent moved the Court for summary dismissal of the application for judicial review filed on
23 September 2004, on the basis that the current proceedings were an abuse of process and disclose no reasonable cause of action.d)The current proceedings are an abuse of the process of the Court and ought to be dismissed pursuant to r.13.10(c) of the Rules. The applicant was again seeking to re-agitate matters which were, or could have been, pursued in his previous proceedings: Samson v Minister for Immigration & Multicultural & Indigenous Affairs; SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs per Barnes FM; SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs at [11].The repeated bringing of similar applications for judicial review of the same Tribunal decision is unjustifiably vexatious and brings the administration of justice into disrepute, particularly as there is an underlying public interest in the finality of litigation: SZAWW v Minister for Immigration & Multicultural Affairs, Walton v Gardiner at 393.
e)The applicant was legally represented at all relevant times in his previous proceedings before the High Court of Australia and Federal Court of Australia. He had ample opportunity to bring forward any legitimate and bona fide claim and to inform the Court and the respondent of the nature and evidential basis for his claims: NAYF v Minister for Immigration & Multicultural Affairs. The grounds of review in the current application are meaningless in the absence of any particulars or evidence. The proceedings, being groundless on their face, are an abuse of process: SZBJM v Minister for Immigration & Multicultural Affairs, per Madgwick J at [29]-[30].
f)The applicant waited approximately twelve months after the orders of the Honourable Justice Lander in his former proceedings, before instituting the current proceedings in the Federal Magistrates Court. The applicant has not made any attempt to set aside the orders made in his previous proceedings. It was open to the Court to infer from the applicant’s litigation history that the current application has been filed for the collateral purpose of extending his stay in Australia: Kosi v Minister for Immigration (“Kosi”) at [18]; NALE v Minister for Immigration & Multicultural Affairs at [12].
g)Part 4, r.4.01 and 4.02 of the Rules relevantly provide that an application to the Court must state precisely and briefly the orders sought and the basis upon which they are sought. Rule 4.05(1) provides that an applicant must file an affidavit in support of an application, whether seeking final, interim or procedural orders.
h)An order summarily dismissing proceedings should only be made where there is no real question to be tried or where the claims are clearly untenable and cannot succeed: Lee v Minister for Immigration per Hartnett at [24]; Applicant A135/2002 v Minister for Immigration & Multicultural Affairs per Finn J at [3]-[6]; Applicant A163 of 2002 v Minister for Immigration & Multicultural Affairs at [1] per Selway J; and Xie v Immigration Department at [20] per Carr J.
i)The question the Court must decide is whether the material before the Court is such that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.
It must be plain and obvious that the grounds for the application are unarguable or that it is a hopeless case with no chance of success: SZBWF v Minister for Immigration at [25], Murex Diagnostics Australia Pty Ltd v Chiron Corp.j)In circumstances where an applicant is self-represented, it has been held that the Court should independently consider whether an arguable case based on the material could be made out by the applicant: Chung v University of Sydney at [14] per FM Driver; upheld on appeal in Yo Han Chung v University of Sydney (“Yo Han Chung”). See also: Kosi..
k)The application for judicial review essentially pleads four grounds of review but contains no particulars of any alleged jurisdictional error. No affidavit has been filed in support of the application, nor has any amended application been received.
l)The first ground pleads that the Tribunal was in breach of the rules of procedural fairness by failing to take into account “material directly relevant and adverse to the applicant” without providing him an opportunity to address the information. The second ground essentially repeats the first ground. The independent country information relied upon by the Tribunal falls within the exception provided in s.424(3)(a) of the Act and was in the public domain. The delegate also wrote to the applicant putting him on notice of issues of the same general substance as those raised by the independent information. There is no support for this ground, no particulars are provided, and accordingly this ground must fail.
m)The third ground alleges that the Tribunal was in the breach of the rules of procedural fairness by relying in an “impermissible way upon certain submissions of the Secretary of the Department relevant to the review by the Tribunal of the Secretary of the Department (sic)”. The fourth ground essentially suggests that the Secretary of the Department failed to provide the Tribunal with documents relevant to the review. No particulars have been provided and the materials disclose no support for this ground.
n)There was no substance to any of the grounds for review advanced by the applicant in the present application. The application does not raise any arguable case or any real question to be tried. Accordingly, it discloses no reasonable cause of action and should be dismissed.
Reasons
The applicant in these proceedings was self represented and had made no written or oral submissions. The grounds in the original application were vague and unparticularised. When invited to respond to the respondent’s submissions, the applicant indicated that although he wished to submit further documents he was unaware that he could do so. He indicated that his relatives in Nepal had been obtaining further material but was unaware of the status of its preparation and suggested that it may have been dispatched by them.
I reminded the applicant that he appeared before me at a directions hearing on 8 October 2004 and on that occasion some time had been spent by the respondents’ solicitor, with the aid of an interpreter, in the Court explaining the requirements to prosecute this matter further. Emphasis was also placed on the requirements to meet the timetable for the filing and serving of documents which had been set down at that time. When shown his signature on the Court documents indicating that he had had the documents explained to him and he had been provided with a copy of the future timetable, the applicant acknowledged that he had received this information and it had been explained to him. I also pointed out to the applicant that the matter had been before the Court on a number of occasions prior to the current hearing and on each of those occasions the applicant had been given the opportunity to submit documents in support of his challenge of the Tribunal’s decision of November 2002 (a period in excess of two years). In the intervening period the applicant did not provide any further documentation or submissions in support of his claim despite being giving several opportunities before being dispensed with by the Federal Courts.
It was indicated to the applicant that he was again given an opportunity to prepare his documentation and marshal his evidence when the directions were made by this Court on 8 October 2004. Since that date nothing further has been done and none of the Court orders have been complied with.
The applicant was advised that the Motion before the Court was to be upheld and the substantial application dismissed because of the applicant’s failure to comply with those obligations and that the consequences of failing to comply with the Court orders had been explained to the applicant when he appeared before this Court on 8 October 2004 at the directions hearing. At that time the Court spent considerable time ensuring that the applicant understood what was required to comply with those orders. When invited to put before the Court any reasons why he had failed to comply with those orders, the applicant declined to answer.
Where 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. I believe that this applicant has been given every chance to comply with the orders made in the current proceedings and despite these opportunities, the applicant has failed to comply with the orders. Added to this, the applicant has had a number of various opportunities before other Courts and those proceedings have also been terminated because of the applicant’s failure to comply with orders made by that Court.
I accept the submissions made by Ms Gibson in respect of an abuse of process.
Conclusion
I uphold the Notice of Motion on the grounds that the application is an abuse of process and dismiss the substantive application as filed in this Court on 23 September 2004.
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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 2 March 2005
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