SZFDL v Minister for Immigration
[2006] FMCA 537
•6 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFDL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 537 |
| MIGRATION – Protection visa application – judicial review of the delegate’s decision – decision previously affirmed by the Refugee Review Tribunal – upheld by the Federal Magistrates Court, the Federal Court and the High Court – new application dismissed as an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.10 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.66, 91X |
| Kosi v Minister for Immigration [2003] FMCA 340 NBGZ v Minister for Immigration [2005] FCAFC 119 |
| Applicant: | SZFDL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3130 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 April 2006 |
REPRESENTATION
| Applicant: | Applicant appeared in person with the aid of a Mongolian interpreter |
| Advocate for the Respondents: | Ms Z Brauer |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The first respondent’s application filed on 13 December 2005 is upheld.
The application for judicial review filed on 27 October 2005 is dismissed.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Dr Irene O’Connell, File No: NO4/49178) made on 30 September 2004 and handed down on 26 October 2004, or the decision of the delegate of the Minister for Immigration (of Rodrick Johnson File No: CLF2004/22279) made on 16 April 2004, is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3130 of 2005
| SZFDL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Proceedings
By an application on 13 December 2005, the first respondent seeks an order that the applicant’s application be dismissed on the basis that:
a)An order that the application filed on 27 October 2005 be dismissed pursuant to r.13.10(b) and/or 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the ground that the proceedings are vexatious and/or an abuse of process.
b)Further, or in the alternative, an order that the application filed on 27 October 2005 be dismissed pursuant to r.13.10(a) of the Rules on the ground that no reasonable cause of action is disclosed.
c)Further, or in the alternative, an order that the applicant may not institute further proceedings without the leave of the Court, including both the delegate’s decision and the Refugee Review Tribunal decision.
d)An order that the proceedings be otherwise stayed or dismissed.
e)Such further or other orders as the Court sees fit.
For the purposes of this application, the first respondent tendered and applied for the following affidavit of Andrea Maree Mansour sworn on 13 December 2005 (“affidavit of Ms Mansour”) to be admitted into evidence.
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 on 27 October 2005. That application was for judicial review of a decision of the delegate of the Minister for Immigration, made on 16 April 2004, refusing to grant the applicant a Protection (Class XA) Visa. The delegate’s decision is identified by file no: CLF2004/22279.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZFDL”.
Background
The decision of the Refugee Review Tribunal (“the Tribunal”) contains a brief background of the applicant, who is a citizen of Mongolia and arrived in Australia on 21 February 2004. On 2 April 2004, he lodged an application for a Protection (Class XA) Visa under the Act, with the Department of Immigration. On 16 April 2004, a delegate of the Minister refused to grant a Protection (Class XA) Visa and on 25 May 2004, the applicant applied to the Tribunal for a review of the delegate’s decision (affidavit of Ms Mansour p.11).
The applicant attached a statement to his protection visa application, which stated that he feared persecution for reasons of his political opinion. He states that during his time at University, he became a member of the New Leaders Club, which was established by young people interested in the country’s economic and political progress, and who were eager to dedicate their lives to the improvement of their homeland. The applicant states that the New Leaders Club was not an anti-government organisation, however, their political views did not necessarily align with the Mongolian Peoples Revolutionary Party that was in power. The applicant states that in December 2003, the Office of the National Security Service visited his work place and other members of the New Leaders Club, due to concerns about the Club’s activities in the forthcoming elections. Because of the threat the security services had, the Club members decided to keep a low profile and find a way to leave Mongolia to seek protection in another country (affidavit of Ms Mansour, pp.13 and 14).
Litigation History
The affidavit of Ms Mansour provides a convenient summary of the litigation history of the applicant and I adopt paragraphs 3 to 9 of that affidavit for the purposes of this judgment:
3.On 16 April 2004 a Delegate of the Minister (the “Delegate”) refused the grant of a protection visa to the Applicant.
4.On 30 September 2004 the RRT affirmed the Delegate’s decision not to grant a protection visa to the Applicant.
5.On 30 November 2004, the Applicant applied for judicial review of the RRT decision in the Federal Court of Australia.
6.On 23 June 2005 Scarlett FM of the Federal Magistrates Court of Australia dismissed the Applicant’s application.
7.On 13 July 2005, the Applicant filed a notice of appeal from the judgment of Scarlett FM referred to in the preceding paragraph.
8.On 21 December 2003, Madgwick J of the Federal Court of Australia dismissed the notice of appeal referred to in the preceding paragraph.
9.On 27 October 2005, the Applicant commenced proceedings in this honourable Court seeking Judicial Review of the RRT’s decision.
Respondent’s Submissions
Ms Brauer, solicitor for the respondents, provided written submissions in support of her application and I adopt paragraphs 4 to 12 of those submissions for the purposes of this judgment:
4.In summary the Respondent seeks dismissal of the Application on various grounds that flow from the Applicant having previously sought judicial review under section 39B of the Judiciary Act 1903 (Cth) and the determination of these matters:
(a)in the Federal Magistrates Court on 30 November 2004 (application dismissed);
(b)in the Federal Court on 13 July 2005 (notice of appeal dismissed);
5.In summary, the Respondent submits that the substantive application should be dismissed pursuant to rule 13.10 of the FMC Rules. Any error in the Delegate's Decision was "cured" by the RRT's review of the Applicant's case and his Application therefore cannot succeed.
6.The Minister’s case for the motion is quite simple. It is said that the application discloses no reasonable cause of action because even if there were any jurisdictional error affecting the Delegate's Decision, it was “cured” by the decision of the RRT.
7.The delay in raising the present challenge also reveals an abuse of process.
8.As a general principle, the Court should not hear a challenge to a primary decision where there is a de novo review decision, because the review decision “cured” the primary decision: Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294, Wilcox J at 298-299.
9.That a valid Tribunal decision will “cure” a primary decision has been approved by the Full Court: see Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 100 FCR 495, Gyles J at [92]-[96]; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58. See also NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 783.
10.While what is precisely meant by the metaphor of a delegate’s decision being “cured” is not entirely clear, the metaphor has been adopted at the highest judicial levels: Twist v Randwick Municipal Council (1976) 136 CLR 106, Mason J at 116.
11.It is clear, at least, that it means that a court will not give relief in respect of a delegate’s decision when a person affected by the decision has had the opportunity to seek a de novo merits review and that opportunity was taken. (It is to be noted that the Applicant cites Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292, SZCTH v Minister for Immigration (No.1) [2004] FMCA 211 and NAMG v Minister for Immigration (No.1) [2003] FMCA 541 - all of which are cases in which no de novo review by a Tribunal occurred. In any event these cases must be read subject to the authorities cited at paragraphs [8]-[10] above.)
12.It follows that, in the present circumstances, whatever merit the Applicant might have in his judicial review application, his present application must fail.
Reasons
The applicant appeared before me at a directions hearing on 29 November 2005. It was foreshadowed that the respondent would seek to have his application dismissed on an interlocutory basis on the grounds that the proceedings were vexatious, disclosed no reasonable cause of action, or an abuse of process of the Court. I granted the applicant leave to file an amended application together with written submissions to meet the respondent’s challenge, but he has declined to comply with these orders. I gave the applicant the opportunity to make any oral submissions to the Court in support of his application, but he also declined this invitation.
This is an interlocutory application by the Minister filed on 13 December 2005. The Minister seeks the summary dismissal of the application pursuant to r.13.10(c), or alternatively, r.13.10(a) of the Rules. Due to the litigation history engaged in by the applicant, set out above in summary form at [7] above, I propose to deal with this application as abuse of process of the Court where the present application is “plainly untenable and arguably doomed to fail”: NBGZ v Minister for Immigration [2005] FCAFC 119 at [61].
The applicant initially sought review of the Tribunal’s decision in this Court before His Honour Scarlett FM, who made the comment in SZFDL v Minister for Immigration [2005] FMCA 899 at [18]:
I have considered all of the material before me. There is no evidence of bad faith or bias on the part of the Tribunal. I am satisfied that there was evidence upon which the Tribunal was entitled to rely in reaching the findings that it did. I cannot find any jurisdictional error. There is no reviewable error and the application must be dismissed.
The applicant exercised his right of appeal to the Federal Court in the proceeings NSD1156 of 2005. His Honour Madgwick J, dismissed the application on 21 September 2005 and concluded at [8]:
The material before me suggests no error on the part of the learned Federal Magistrate in dealing with the material before him, nor that, insofar as any other ground is now raised, there is any substance in it.
I note that unlike many of these applications which are using the same precedent and probably the same anonymous advisor, the applicant has not sought Special Leave to Appeal to the High Court.
The applicant appears to have accepted the finality of his litigation in respect of the Tribunal’s decision. However, his new application to this Court seems to have adopted a precedent application, which has been circulating recently. This seeks a renewal of litigation, challenging the primary decision of the Minister’s delegate, which had already been affirmed by the Tribunal. The applicant has now availed himself of such a precedent. I note that a similar approach has been adopted by others. It has come to the attention of this Court and was referred to in the decision of Her Honour Barnes FM in SZGKO v Minister for Immigration [2005] FMCA 1254 and His Honour Smith FM in SZGMZ v Minister for Immigration [2005] FMCA 1549. I made similar observations in my previous decision SZFRF v Minister for Immigration [2006] FMCA 48.
The application before this Court duplicates the applications considered in SZGMZ v Minister for Immigration and SZFRF v Minister for Immigration where the application purports to challenge the delegate’s decision on the basis that it is invalid due to an alleged failure to file notification procedures under s.66 of the Act.
The current application filed in this Court is plainly an attempt to re-litigate a case already disposed of and it should be dismissed as an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ:
Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
In my opinion, the decision of SZGMZ v Minister for Immigration at [22]-[26] per Smith FM, clearly addresses and articulates the four reasons, as His Honour described, why the present application is an abuse of process and has no prospects of success in obtaining the relief it seeks. This application is a persistent attempt by the applicant to bring an unmeritorious application to the Court. I therefore propose to dismiss the present application. In coming to this decision, I am also guided by the decision of his Honour Driver FM in NALE v Minister for Immigration [2003] FMCA 366 where the re-invigoration of proceedings may have been pursued to extend the applicant’s stay in this country. Reference was also made to the decision of Driver FM in Kosi v Minister for Immigration [2003] FMCA 340 at [18]:
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.
Conclusion
For the above reasons, I consider the present application is an abuse of process and it is appropriate to dismiss it summarily. I propose to make an orders sought by the first respondent. I also consider that I should give a direction to the Court’s Registry that it decline any further applications from the applicant concerning any aspect of the decision-making process on his protection visa application. If the applicant can demonstrate an issue affecting his current entitlements, which has not been decided against him in his previous litigation, which requires adjudication about the decision-making, then he would be allowed to commence another proceeding. However, the applicant will have to show a controversy which properly requires the attention of this Court. Regretfully, the applicant has obtained these pleadings without any clear understanding. Those proceedings lack relevance to his particular situation. The identical pleadings commonly submitted were done so by applicants who were previously been before this Court, the Federal Court and the High Court and who have failed in their review application at all levels. This identical application, except for the names and details of the individual case, has been placed before me for three separate interlocutory hearings today.
I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $2,200.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 24 April 2006
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