SZENE v Minister for Immigration
[2006] FMCA 209
•13 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZENE v MINISTER FOR IMMIGRATION | [2006] FMCA 209 |
| MIGRATION – Application for summary dismissal – prior proceedings – abuse of process – vexatious proceedings. |
| Migration Act 1958 (Cth), s.476(2)(a) Administrative Decisions (Judicial Review) Act 1977 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed 2005 FCAFC 58 SZGKO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1254 NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 783 SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316 NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 Twist v Randwick Municipal Council (1976) 136 CLR 106 Walton v Gardiner (1993) 177 CLR 378 Hunter v Chief Constable of the West Midlands Police (1982) AC 529 NALE v Minister for Immigration & Multicultural Affairs [2003] FMCA 366 Attorney-General Victoria v Wentworth (1988) 14 NSWLR 481 NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 418 Applicant NABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA Trans 279 per Kirby J NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 418 SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581 NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 975 |
| Applicant: | SZENE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2945 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 13 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application for judicial review filed on 13 October 2005 be dismissed on the grounds that
(i)pursuant to Pt 13.10(c) of the Federal Magistrates Court Rules 2001 the proceedings are an abuse of process; and in the alternative
(ii)pursuant to Pt 13.10(a) of the Federal Magistrates Court Rules 2001 the application fails to disclose a reasonable cause of action; and in the alternative
(iii)pursuant to Pt 13.10(b) of the Federal Magistrates Court Rules 2001 the proceedings are frivolous or vexatious
That no further application by the applicant to review the decision of the delegate of the respondent dated 22 June 1999 refusing his application for a protection visa or the decision of the Refugee Review Tribunal handed down on 19 December 2001 be accepted for filing except with leave of the Court.
That the Applicant pay the First Respondent’s costs on an indemnity basis fixed in the sum of $2,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2945 of 2005
| SZENE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the court by way of a notice of motion filed by the respondent on 28 October 2005 seeking summary dismissal of an application filed by the applicant on 13 October 2005. The application seeks review of the notification of a decision and the decision of a delegate of the respondent to refuse to grant the applicant a protection visa on a number of generally expressed and unparticularised grounds. The application stated that the applicant was notified of the decision that was the subject of this application on
22 June 1999.
The respondent seeks that the application for judicial review be dismissed on the grounds that it is either an abuse of process, fails to disclose a reasonable cause of action, or because the proceedings are frivolous or vexatious. In essence summary dismissal is sought because there has been judicial review of the decision of the Refugee Review Tribunal that reviewed the decision of the delegate.
The applicant filed written submissions on 15 December 2005 which repeated his claims to be a refugee, stated that the delegate had refused his application and that he sought review by the Tribunal and then took issue in a number of respects with the decision of the Tribunal. In light of this I asked the applicant to clarify which decision or decisions he wanted the Court to review in these proceedings. He stated that he sought review of the delegate's decision. I dealt with the notice of motion on that basis.
It is relevant to have regard to the history of prior proceedings. The applicant, who is a citizen of Bangladesh, came to Australia in April 1999. He applied for a protection visa. The application was refused by a decision which, it is not disputed, was notified to the applicant on
22 June 1999. The applicant sought review by the Tribunal. He attended a Tribunal hearing. The Tribunal affirmed the decision of the delegate by decision handed down on 19 December 2001. The applicant sought review of the Tribunal decision by application filed in the Federal Court on 16 January 2002. On 30 April 2002 Gyles J dismissed the application for review. The applicant appealed to the Full Court of the Federal Court. He then lodged a notice of motion seeking an adjournment of the hearing date. That application was refused. On 25 November 2002 the Full Court of the Federal Court dismissed the appeal with costs.
On 20 December 2002 the applicant lodged an application for special leave to appeal in the High Court. That application was deemed abandoned in July 2003. The applicant lodged a second application for special leave to appeal in July 2003. On 6 August 2004 Kirby and Heydon JJ dismissed the application for special leave to appeal. I note that this occurred after the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. Insofar as the Court inferred that there was also an application for an adjournment, that application was also dismissed.
On 5 October 2004 the applicant filed a further application for judicial review of the Tribunal decision in the Federal Magistrates Court. The respondent filed a notice of objection to competency and a notice of motion seeking summary dismissal. On 9 November 2004 the applicant filed a notice of discontinuance. I am told from the bar table that this was three days before the date fixed for hearing of the application for summary dismissal. On 12 November 2004 Federal Magistrate Lloyd-Jones ordered that the applicant pay the respondent's costs.
The applicant commenced the present proceedings for judicial review of the delegate's decision on 13 October 2005. There is no explanation from the applicant for the past litigation history.
The application for summary dismissal is put on a number of bases. First, it is submitted, and I accept, that the application should be dismissed as disclosing no reasonable cause of action because, even if there was a jurisdictional error affecting the decision of the delegate, it was cured by the decision of the Tribunal which has been held not to be invalid. It is clear that a Tribunal decision may cure a primary decision, consistent with what was stated by Wilcox J in Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 at 298 to 299. More generally see Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed 2005 FCAFC 58.
A Court will not grant relief in respect of a delegate's decision when a person affected by the decision has, as in this case, had the opportunity to seek a de novo merits review. That opportunity was taken and the decision on review was not flawed by error subject to correction in judicial review proceedings. It follows that the applicant's present application to review the delegate's decision must fail. While the decision of Wilcox J in Wu left open the possibility that there may be errors of a kind in a delegate's decision or procedures that are not capable of being cured, this is not such a case. The grounds in the application and the applicant's submissions are not such as to raise any error of a nature that could not be cured. See SZGKO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1254. The grounds raised by the applicant are general and unparticularised and his written submissions do not address those grounds.
As Federal Magistrate Raphael stated in NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 783 at [4] the proper place to complain about the delegate's decision was the Tribunal or otherwise before proceedings under the Administrative Decisions (Judicial Review) Act 1977 and “The applicant's failure to do such things or to raise these matters in the prior proceedings seeking judicial review, the Tribunal decision would seem to invoke the principle of Anshun estoppel”.
In these proceedings the applicant now seeks to bring an action under the Administrative Decisions (Judicial Review) Act 1977. Nonetheless, the applicant's claim, however expressed, is so obviously untenable that it cannot possibly succeed. In this instance the applicant failed to challenge the delegate's decision in either of the prior proceedings seeking judicial review of the Tribunal decision. At the least, the concept of curing a delegate's decision means that the court will not give relief in respect of a delegate's decision in circumstances where a person affected by the decision has had the opportunity to seek a de novo merits review, has taken that opportunity and where the decision on review has been found not to be flawed by error subject to correction in judicial review proceedings. See SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316 at [25].
Further, even if strictly speaking the matter was not such as to fall within the principles relating to the lack of any reasonable cause of action (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119) I am satisfied that the proceedings should be dismissed as an abuse of process or as frivolous or vexatious.
Were this case to proceed to a final hearing the application should fail on principles of Anshun estoppel as the subject matter relied on in these proceedings can be said to be so relevant to the subject matter of the prior proceedings that it was unreasonable for the applicant not to raise it. The applicant has not brought to the attention of the Court, nor is it apparent that there are any special circumstances which would justify the exercise of discretion not to apply the principles of Anshun estoppel. Even if, technically, Anshun estoppel does not apply, nonetheless the circumstances are relevant to my finding that the applicant's claim has no chance of success because of the principles in Wu and also see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116. In these circumstances the continuance of these proceedings would be an abuse of process, having regard to all of the circumstances including the failure to challenge the delegate's decision in the two prior judicial review proceedings, the absence of any explanation or any apparent reasonable basis for such failure or special circumstances as well as the unexplained delay in instituting proceedings in relation to the delegate's decision. The delegate's decision was in 1999, the Tribunal decision was in 2001. Further, while the last proceedings in the Federal Magistrates Court were discontinued in November 2004, these proceedings were not initiated until October 2005.
As was stated by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 392-393 the continuance of proceedings may be an abuse of process even if the circumstances do not give rise to an estoppel if their continuance would be unjustifiably vexatious and oppressive. Their Honours gave the example of proceedings that were unjustifiably vexatious and oppressive for the reason it was sought to litigate anew a case which had already been disposed of by prior proceedings. These are such proceedings.
In this instance the applicant's case, in the broad sense, was disposed of by the decisions of the Federal Court and the High Court to the effect that the Tribunal decision was valid. In this sense the right of the applicant to a protection visa was determined adversely by the prior proceedings. Moreover, as stated by Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 the Court should exercise its inherent power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would bring the administration of justice into disrepute amongst right-thinking people.
It is appropriate to have regard to the underlying public interest that there be finality in litigation and that a party should not be vexed over and over again in the same matter. Furthermore, having regard to the applicant's litigation history it can be inferred that the applicant has filed the present application for the collateral purpose of extending the period of his stay in Australia and not for the purpose of having the court adjudicate on the issues to which the proceedings give rise. (See NALE v Minister for Immigration & Multicultural Affairs [2003] FMCA 366 and Attorney-General Victoria v Wentworth (1988) 14 NSWLR 481).
Accordingly, the notice of motion should be upheld and the proceedings dismissed on the alternative grounds of that there is no reasonable cause of action, an abuse of process and that the proceedings are frivolous or vexatious. Before I make those orders, I will hear submissions from the parties in relation to the other orders that are sought in the notice of motion.
RECORDED : NOT TRANSCRIBED
The respondent seeks that the applicant pay the respondent's costs on an indemnity basis. I gave the applicant an opportunity to comment on this aspect of the notice of motion. His response addressed his lack of work, a claim that his life was in danger and that he wanted his case re-considered. In circumstances where I have found that the application is an abuse of process and the proceedings are vexatious, I consider that the order sought by the respondent is appropriate.
I also gave the applicant an opportunity to comment on the order sought by the respondent that no further application to review the delegate's decision or the Tribunal's decision be accepted for filing accept with leave of the Court. He did not address this aspect of the notice of motion other than to reiterate his claim that he had sought a protection visa application because his life was in danger, that he had no idea of the law and would respect the law. In the particular circumstances of this case I am satisfied that the applicant has instituted a vexatious proceeding. He has initiated prior judicial review proceedings on two previous occasions. It is apparent from the history of those prior proceedings that he sought an adjournment in the Full Court of the Federal Court and was deemed to have abandoned his first application for special leave to appeal to the High Court, then initiated a further application for special leave. The High Court understood from that application that he was seeking not only special leave to appeal but also an adjournment. It dealt with these applications. He provided a medical certificate which did not speak to his fitness to attend Court. His application was described as an endeavour to re-agitate the merits of his protection visa application. The applicant did not appear in the High Court (see Applicant NABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA Trans 279 per Kirby J). Kirby J observed that the applicant’s written submissions did not disclose any jurisdictional error and there were no prospects of success in the application.
Despite this the applicant then commenced fresh proceedings to review the Tribunal decision in this Court which he discontinued shortly before the hearing of an application for summary dismissal. No explanation has been provided for the conduct of the litigation. The applicant persisted with past applications despite the absence of evidence of “proper or sensible” grounds for review of the Tribunal decision (see NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 418 at [1] per Whitlam J). His written submissions in these proceedings also took issue with the Tribunal decision. After an unexplained delay he now seeks review of the delegate’s decision on generally expressed and unparticularised grounds. No explanation has been provided for his failure to raise such matters in any of his prior proceedings.
As from 1 December 2005 this Court has no jurisdiction in relation to a primary decision (s.476(2)(a) of the Migration Act 1958 (C’th)). In these circumstances I am satisfied that the order sought should be made (see SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581 at [27] and NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 975) addressing both applications to seek review of the delegate's decision in issue and applications to seek review of the Tribunal decision.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 February 2006.
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