SZENK v Minister for Immigration
[2005] FMCA 1773
•17 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZENK v MINISTER FOR IMMIGRATION | [2005] FMCA 1773 |
| MIGRATION – PRACTICE AND PROCEDURE – Application for leave to file an application seeking judicial review of Refugee Review Tribunal decision – previously reviewed by Federal Magistrates Court, Federal Court and High Court – previous orders of Federal Magistrates Court not permitting filing of further application in relation to RRT decision without leave of the Court – leave refused. |
Migration Act 1958 (Cth), ss.91X, 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.11
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs
BZAR of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 413
Johnson v Gore Wood & Co [2002] 2 AC 1
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
| Applicant: | SZENK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2521 of 2005 |
| Delivered on: | 17 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms J Bautista |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application for leave to file and serve the application for judicial review dated 8 September 2005 by the applicant is denied.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Ms J Morris File No: N00/36488) made on 26 November 2002 and handed down on
19 December 2002 or the decision of the Delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (of Ms Janette McPhee) handed down on 23 November 2000 be accepted for filing without leave of this Court.
The Court directs that no further application by the applicant to review the decision of the Minister for Immigration & Multicultural & Indigenous Affairs handed down on 23 November 2000 or any of her delegates is to be accepted for filing without leave of this Court.
Pursuant to Part 13, Rule 13.11 of the Federal Magistrates Court Rules 2001 (Cth), the applicant be declared a vexatious litigant.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,200 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2521 of 2005
| SZENK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for leave to file an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), which the applicant attempted to file in the Sydney Registry of the Federal Magistrates Court of Australia on 8 September 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 November 2002 and handed down on 19 December 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 23 November 2000 to refuse to grant the applicant a protection (Class XA) visa. On 8 March 2005 her Honour Federal Magistrate Rimmer made an order that the applicant is not permitted to file any further application in relation to the decision of the Tribunal dated 26 November 2002 and handed down on 19 December 2002 in the Federal Magistrates Court without leave of this Court.
On 11 October 2005 I made orders that the application filed on
8 September 2005 be treated as an application for leave to file and serve an application to review the decision of the Tribunal dated
26 November 2002 and handed down on 19 December 2002. The respondent opposes the application for leave to file the application.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZENK”.
For the purposes of this leave application, the respondent tendered and applied for the affidavit of Andrea Jane Nesbitt sworn on 19 October 2005 (“the affidavit of Ms Nesbitt”) to be admitted into evidence.
For the purposes of this leave application, the applicant tendered and applied for his own affidavit sworn on 5 October 2005 (“the affidavit of the applicant”) to be admitted into evidence.
Background
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 29 September 2000. On 20 October 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 23 November 2000 the delegate refused to grant a protection visa and on 18 December 2000 the applicant applied to the Tribunal for a review of the delegate’s decision.
Litigation history
A convenient summary of the litigation history of this applicant is contained in the affidavit of Ms Nesbitt and I adopt paragraphs 5-26 of that affidavit for the purpose of this judgment:
[5]On 19 December 2002, the RRT constituted by J Morris handed down a decision to affirm the decision of the delegate of the respondent to refuse the applicant a protection visa.
[6]On 13 January 2003, the applicant lodged an application for judicial review and affidavit in the Federal Court of Australia. Those proceedings were allocated proceedings no. N27 of 2003.
[7]On 21 February 2003, the Honourable Justice Gyles transferred the proceedings to the Federal Magistrates Court.
[8]On 20 June 2003, the Honourable Federal Magistrate Barnes dismissed the application with costs which was allocated proceedings no. SZ2221 of 2003.
[9]On 10 July 2003 the applicant lodged a notice of appeal in the Federal Court from the judgment of Barnes FM dated 20 June 2003. It was allocated proceedings no. N818 of 2003.
[10]On 10 September 2003, the Honourable Justice Conti ordered that the appeal be dismissed with costs.
[11]On 12 October 2003, the applicant lodged an application for special leave to appeal in the High Court of Australia. It was allocated proceedings no. S526 of 2003.
[12]On 16 August 2004, the respondent received a letter from the High Court of Australia listing the application for special leave to appeal for hearing on 10 September 2004.
[13]On 10 September 2004, a hearing was conducted before the Honourable Justices Kirby and Heydon in the High Court of Australia. Those proceedings were adjourned.
[14]On 27 September 2004, the applicant lodged a notice of discontinuance in the High Court of Australia.
[15]On 6 October 2004, the applicant lodged an application for judicial review in the Federal Magistrates Court of Australia. It was allocated proceedings no. SYG3008 of 2004.
[16]On 20 October 2004, the respondent filed a notice of objection to competency.
[17]On 25 October 2004, the respondent filed and served a notice of motion for summary dismissal.
[18]On 9 December 2004, the applicant lodged a notice of discontinuance in the Federal Magistrates Court of Australia.
[19]On 14 December 2004, the Honourable Federal Magistrate Lloyd-Jones ordered that the applicant pay the respondent’s costs fixed in the sum of $1,800.00.
[20]On 10 December 2004, the applicant lodged an application for judicial review in the Federal Magistrates Court of Australia at Brisbane. It was allocated proceedings no. BRG718 of 2004.
[21]On 8 March 2005, the Honourable Federal Magistrate Rimmer dismissed the application with costs and ordered that the applicant was not permitted to file any further application in relation to the decision of the Refugee Review Tribunal dated
26 November 2002 and handed down on 19 December 2002 in the Federal Magistrates Court without leave of the court.[22]On 21 March 2005, the applicant lodged an application for leave to appeal in the Federal Court in Queensland. It was allocated proceedings no. QUD76 of 2005.
[23]On 14 April 2005, the application for extension of time and leave to appeal was refused by the Honourable Justice Spender.
[24]On 9 May 2005, the applicant lodged an application for special leave to appeal in the High Court. It was allocated proceedings no. B36 of 2005.
[25]On 29 August 2005, the applicant’s application for special leave to appeal was refused by the Honourable Justices McHugh and Heydon.
[26]On 8 September 2005, the applicant lodged an application for judicial review in the Federal Magistrates Court of Australia at Sydney. It was allocated proceedings no. SYG2521 of 2005.
Reasons
I accept the submissions of Ms Bautista, appearing for the respondent, that it was the orders made by her Honour Federal Magistrate Rimmer in proceedings no. BRG718 of 2004 which has led to the current application seeking leave to file before this Court. The respondent submitted that the judgment of his Honour Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs gives her Honour Federal Magistrate Rimmer the power to make such an order and it is open to her Honour to make that order in light of the applicant’s litigation history. I refer to her Honour’s comments at [24] of her judgment (BZAR of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs) (BZAR of 2004) where her Honour held:
“The Court must be able to order the business of the Court where a person simply will not accept finality of decision. It puts both the Court's resources, and the resources of the respondent, to no good use in making applications which have no basis at law, which fail on a summary dismissal argument and where there is a repeated cause of action that identifies to the Court that the applicant is likely on the past experience to continue to bring such applications to the Court. Clearly this is one of those matters.
Clearly, this is one of those matters. Her Honour goes on to say at [25]:
Given that the applicant brought almost identical proceedings in the Federal Magistrates Court in Sydney in October, discontinued those proceedings, and then in December of the same year came to Brisbane and filed an identical application in Brisbane, I am satisfied that the facts of this matter establish very clearly that it is highly likely that the applicant, without the Court making the order that is sought by the respondent, will simply keep filing applications using resources of the respondent, and the resources of the Court, to no good purpose on applications which simply have no basis or merit to them.”
Underpinning the power of the Court to make an order preventing an applicant from re-filing further proceedings is the principle that the Court has the power to prevent future abuses of its processes. Ms Bautista submitted that the request for leave by the applicant to continue with these proceedings should not be granted because they are barred by res judicata, issue and Anshun estoppel, they constitute an abuse of the Court’s processes and are frivolous and vexatious.
The fact of the applicant’s extensive litigation history is the primary basis upon which the respondent relied for opposing the grant of leave to allow this application to continue. The Tribunal’s decision, that is the subject of the current proceedings, has already been reviewed on a number of occasions and found to be free from jurisdictional error. Consequently, it would be futile to allow the application to proceed because it is barred by res judicata and estoppel. I accept the respondent’s submission and rely on the decision of Federal Magistrate Rimmer (BZAR of 2004) where these arguments are fully ventilated.
The respondent also contended that these proceedings are an abuse of process as it is clearly an abuse of process for the applicant to seek to re-litigate a matter that has already been the subject of previous proceedings. It was submitted that the applicant has had more than ample opportunity to bring forward any legitimate claim and inform the Court and the respondent of the nature and evidentiary basis for his claim but he has not done so. Moreover, the applicant’s current proceedings suffer the same vice as all of his previous proceedings being a lack of particulars and being unsupported by evidence. I accept the submission that the course of action adopted by the applicant constitutes an abuse of process. The repeated bringing of similar applications can be an abuse of process if the application would be unjustifiably vexatious or oppressive and brings the administration of justice into disrepute. There is an underlying public interest that there ought to be finality in litigation: Johnson v Gore Wood & Co per Lord Bingham at 22-34.
I accept the submission that these proceedings are obviously untenable and manifestly groundless to be utterly hopeless. I accept the submission that the current proceedings had been brought for a collateral purpose and that purpose is to extend the applicant’s stay in Australia and that would make these proceedings frivolous and vexatious. I note that the applicant has submitted written submissions and been invited to support those submissions orally. However, the applicant has not sought to raise any new points to the Court’s attention or any special circumstances to justify the grant of leave to allow the proceedings to continue. No explanation has been provided as to why after multiple attempts at judicial review of the Tribunal’s decision leave ought to be granted in this case. I believe that to allow the proceedings to continue would extend the applicant’s abuse of the Court’s process.
My attention has been brought to the decision of his Honour Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where this issue was canvassed and reference was made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where Driver FM states:
“It would be an abuse of the Court's process to file an application for review simply for the purpose of extending the period of one's stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances there is potential for the Court's process to be abused by an applicant whose only purpose is to take advantage of that delay.”
The respondent seeks an order declaring the applicant to be a vexatious litigant because when all of the applicant’s proceedings are taken into account the applicant’s litigation history establishes that he habitually and persistently institutes vexatious proceedings in the Court against the respondent. The Court has the power to make the order under Rule 13.11(1) of the Federal Magistrates Court Rules 2001 (Cth) which states:
(1)If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
(a) …
(b)that person may not institute a proceeding without leave of the Court.
Although it would be hard to envisage a situation where the applicant would need to institute any further proceedings in this Court against the Tribunal or the respondent, however if on the rare chance that situation does arise and the applicant does need to institute such proceedings, he can always seek leave to do so. In the application of this Rule I am guided by the decision in MZWYI v Minister for Immigration & Multicultural & Indigenous Affairs per Phipps FM at [24]-[30].
Conclusion
For the reasons set out above, the application for leave to file and serve an application to review the decision of the Tribunal made on
26 November 2002 and handed down on 19 December 2002 in the Federal Magistrates Court is denied. I also make orders that the applicant may not institute any further proceedings against the Minister for Immigration & Multicultural & Indigenous Affairs and her delegates or the Tribunal without the leave of this Court. I declare the applicant a vexatious litigant pursuant to Part 13, Rule 13.11(1) of the Federal Magistrates Court Rules 2001 (Cth).
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 on an indemnity basis.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 November 2005
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