SZFDV v Minister for Immigration - [2007] FMCA 1811

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFDV v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1811

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – cause of action previously determined finally – proceedings certain to fail and not arguable – proceedings an abuse of process – Court has no inherent power to prevent filing of future vexatious proceedings – Court only has powers provided by statute and the Rules of Court.

Migration Act 1958, ss.414, 425, 474
Federal Magistrates Court Rules 2001, rr.13.10, 13.11

Commonwealth Trading Bank v Inglis (1974) 131 CLR 311

Applicant:

SZFDV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2768 of 2007

Judgment of:

Cameron FM

Hearing date:

19 October 2007

Date of last submission:

19 October 2007

Delivered at:

Sydney

Delivered on:

19 October 2007

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Pursuant to r.13.10, the applicant's application be dismissed.
The first respondent's application for an order in terms of the proposed order 2 of its application in a case dated 20 September 2007 be refused.
The applicant pay the first respondent's costs fixed in the amount of $1,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2768 of 2007

SZFDV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In these proceedings the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated 18 October 2004 which was handed down on 11 November 2004. The applicant had claimed to fear persecution in India by reason of his Communist Party membership and his industrial and political militancy.
The Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 amended by the Protocol relating to the Status of Refugees 1967.
The matter is before the Court today on the first respondent's application in a case for summary dismissal pursuant to r.13.10 of the Rules of Court. The first respondent also seeks an order preventing the applicant from bringing further proceedings in this Court arising out of the Tribunal decision in question or the decision of the delegate in respect of which the Tribunal's review was conducted.
In his application the applicant pleads the following grounds:
(1) That the decision of the second respondent was affected by jurisdictional error;
(2) The second respondent failed to afford the applicant procedural fairness;
(3) The second respondent failed to comply with s.425 and/or complete the review under s.414 of the Migration Act.
At the hearing today the applicant also said that he had further documents which he wished to rely upon before the Tribunal, and possibly before this Court as well, relating to his experiences in India.
The first respondent submits that the applicant has no arguable case, has a case which has no reasonable prospects of success, has brought proceedings which are frivolous or vexatious and has brought proceedings which are an abuse of the process of the Court.
As to whether there is an arguable case the authorities show that an application should not be dismissed on the basis of there being no arguable case unless the lack of a cause of action is clearly demonstrated, the claim is groundless, or there is a high degree of certainty about the outcome. Under the Rules of Court the proceedings may also be dismissed if they have no reasonable prospects of success, are frivolous or vexatious or are an abuse of the process of the Court.
The background facts of these proceedings are found in the affidavit of Ms Hooper, and annexures thereto, which I summarise as follows:
(a)on 11 June 2004 the Minister's delegate made his or her decision refusing the applicant's application for a protection visa;
(b)on 10 November 2004 the Tribunal handed down its decision affirming the Delegate's decision;
(c)on 16 June 2005 Scarlett FM in this Court dismissed the applicant's application for judicial review of the Tribunal's decision;
(d)on 13 September 2005 Madgwick J in the Federal Court dismissed the applicant's appeal from the decision of Scarlett FM;
(e)on 30 August 2007 a Full Bench of the High Court dismissed the applicant's appeal from the decision of Madgwick J; and
(f)on 10 September 2007 the applicant filed the application commencing these proceedings.
The decision of the Tribunal is a decision to which s.474 of the Migration Act 1958 (“Act”) applies. As a privative clause decision the Act provides that it is final and conclusive, must not be challenged, appealed against, reviewed, quashed, or called in question in any Court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account. However, the High Court has held that s.474 will not have the operation it purports to have if the decision of the Tribunal is affected by jurisdictional error.
The applicant's amended application dated 21 February 2005 and filed in this Court alleged that the Tribunal's decision was affected by jurisdictional error. In his judgment filed 16 June 2005 Scarlett FM found that the Tribunal had not committed reviewable error. The application heard by Scarlett FM was to set aside the Tribunal's decision and was the foundation of the subsequent appeal process. In these proceedings the applicant again seeks review of the Tribunal's decision. Again, the only basis upon which the Tribunal's decision can be set aside is if it is affected by jurisdictional error.
It is clear in this case that the applicant's application is certain to fail because his claim for judicial review on the basis of jurisdictional error has already been determined and cannot be re-litigated. Further, he is estopped from bringing any claims which were or could have been raised previously and which were or could have been decided in the previous proceedings.
In my view, his claim is not arguable. Moreover, because the applicant, as he conceded today, has already exhausted his appeal rights, these proceedings must be considered to be an abuse of the process of the Court. The consequence of these conclusions is that the applicant's application will be dismissed.
The other principal order which is sought by the first respondent in the application in a case concerns the possibility that the applicant will bring further proceedings in this Court arising out of the delegate's decision or the Tribunal decision, or possibly both. That is to say the first respondent seeks an order in relation to proceedings which have not yet commenced and the orders sought would seem to have some resemblance to the orders provided for by r.13.11 of the Rules of Court in relation to vexatious litigants. However, the order which is sought by the first respondent does not, in terms, appear as one of the orders which that rule permits.
It might be argued that the Court has inherent power to prevent proceedings which may be an abuse of the processes of the Court and in all probability any further proceedings brought by this applicant arising out of the decisions of the delegate or the Tribunal would be an abuse of the process of the Court and vexatious as well. An argument was taken to the High Court in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 that it was settled that a court has inherent power to protect itself from an abuse of its process and could make an order preventing a vexatious litigant from bringing proceedings without leave. Barwick CJ and McTiernan J observed that it was true that there were statements of high authority referring to the power of a court to prevent abuse of its process, but such statements had been made in cases in which the court was concerned with actions which had been instituted in the court and were already pending therein.
Their Honours said this, in relation to that submission:
In our opinion, it is not surprising that the Courts do not appear (so far as we have been able to discover) to have taken the further step of intervening in a summary way to prevent the commencement, except by leave, of actions or other proceedings by a particular person or persons but have limited themselves to exercising their powers in relation to proceedings which have been taken in a Court and have thus been placed under its control. It may be that the exercise of supervision, by means of a requirement that leave should be obtained for the bringing of proceedings, could have been justified logically as a proper safeguard against abuse of the Court's process in cases where it was shown to be probable that a person would continue bringing groundless proceedings. But, in our opinion, it is apparent that the Courts, both in England and in this country, have declined to regard themselves as having the power to do so, except where such power has been conferred upon them by an Act of Parliament or by rules promulgated under statutory authority.

(at 314 – 315).
Their Honours concluded:
In our opinion, the Court should hold that it has no power to make an order, on the application of the present applicant, that no legal proceedings should be instituted by the respondents or either of them without the leave of a Justice of the Court. (at 318).
In the absence of detailed submissions which can demonstrate to me that the law has moved on since Inglis's case, I do not believe that I have power to make an order of the nature sought by the first respondent except in terms specifically provided for by the Rules of Court. Consequently, the order sought as the second proposed order in the application in a case will be refused.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 9 November 2007