SZFEG v Minister for Immigration
[2007] FMCA 44
•19 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 44 |
| MIGRATION – Application for summary dismissal – prior decision by Tribunal and unsuccessful judicial review proceedings – second application to Tribunal in respect of decision by Minister – Tribunal found it had no jurisdiction – application for review of second Tribunal decision – abuse of process. |
| Migration Act 1958 (Cth), ss. 66, 411, 412, 494D Federal Magistrates Court Rules, r.13.10 |
| Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 SZDMO v Minister for Immigration & Multicultural Affairs [2006] FCA 989 SZFEG v Minister for Immigration & Multicultural Affairs [2006] FMCA 834 SZFEG v Minister for Immigration & Multicultural Affairs [2005] FCA 1405 |
| Applicant: | SZFEG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2788 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 19 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 January 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application of 28 September 2006 is dismissed as an abuse of process of the court pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules.
The Applicant shall pay the first respondent’s costs fixed in the sum of $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2788 of 2006
| SZFEG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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 first respondent on 20 October 2006 seeking summary dismissal of an application filed by the applicant on 28 September 2006. The background to these proceedings is that the applicant came to Australia in about January 2004 and applied for a protection visa on 10 February 2004. His application was refused by a delegate of the first respondent on 30 April 2004. He sought review by the Refugee Review Tribunal (the Tribunal) on 14 May 2004.
By decision handed down on 18 November 2004, the Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicant a protection visa. The applicant sought judicial review of that Tribunal decision by application filed in this Court on 6 December 2004. That application was dismissed with costs by Federal Magistrate Scarlett on 1 June 2005, see SZFEG v MIMA [2006] FMCA 834. His Honour found that there was no jurisdictional error in the decision of the Tribunal.
On 20 June 2005 the applicant filed a notice of appeal in the Federal Court of Australia from the decision of Federal Magistrate Scarlett. That appeal was dismissed with costs by Jacobson J on 26 September 2005; see [2005] FCA 1405. The applicant then sought special leave to appeal to the High Court from the judgment of Jacobson J. That application was dismissed. Special leave was not granted; see [2006] HCA trans 189.
The applicant then lodged a further application for review of the same decision of the delegate of the first respondent with the Tribunal. That application was lodged on 8 May 2006. In its reasons for decision dated 4 September 2006 the Tribunal indicated that it had formed a preliminary view that it did not have jurisdiction because the review application was received outside prescribed time limits and because it had already reviewed the delegate’s decision. It invited and received submissions from the applicant on that issue. It outlined the relevant law. It found that the review application was outside the prescribed time limit – see sections 66(2), 494D, 411, 412 of the Migration Act 1958 (Cth) and Regulation 4.31 – and hence it was not a valid application and the Tribunal had no jurisdiction to review the delegate’s decision.
In any event it found further that the applicant had lodged a previous application for review of the same delegate’s decision to the Tribunal, an application which had been accepted, reviewed, and in relation to which there had been the decision of 18 November 2004. It found that as the Tribunal had already discharged its functions under the Migration Act to review the delegate’s decision of 30 April 2004, it no longer had jurisdiction in relation to that decision; see Jayasinghe v MIEA (1997) 76 FCR 301.
On 28 September 2006 the applicant then filed an application in this Court for review of the Tribunal decision of 4 September 2006. That application describes the decision of which review is sought as the decision dated 4 September 2006. It states that the applicant received notification of that decision on 11 September 2006. An accompanying affidavit sworn and filed by the applicant on 28 September 2006 annexes a copy of the decision of 4 September 2006.
There is nothing in the material before the Court to suggest that the applicant seeks further review of the first Tribunal decision which was the subject of the prior judicial review proceedings. This is relevant because in oral submissions it was suggested for the first respondent that insofar as the applicant sought review of the first Tribunal decision, such application would be out of time and hence the Court would have no jurisdiction. As there is no application before the Court in relation to the first Tribunal decision it is not necessary to determine this issue. However the notice of motion seeks dismissal of the application to review the second Tribunal decision pursuant to Rule 13.10 of the Federal Magistrates Court Rules (albeit it also seeks orders in relation to the filing of further applications for review in relation to the earlier Tribunal decision).
What it is necessary to consider is whether the basis for summary dismissal in the notice of motion in relation to the second Tribunal decision is made out. The respondent seeks that the application be summarily dismissed pursuant to Part 13 of the Federal Magistrates Court Rules on the basis that the proceeding or claim for relief is an abuse of the process of the court, that it is frivolous or vexatious, or that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim. The only ground elaborated upon in oral submissions was the claim that the proceeding was an abuse of process of the court, although the court’s attention was drawn to the fact that in the response it was contended that the application in relation to the second Tribunal decision had not raised an arguable case for the relief claimed. That contention is a matter that would be relevant were this to be, as it is not, a show cause hearing under the provisions of the Federal Magistrates Court Rules.
I have considered whether the proceeding or claim for relief is an abuse of the process of the court as contended. As indicated, in this case there was a second application to the Tribunal for review of the same decision of the delegate of the first respondent. The Tribunal was satisfied that the applicant had been validly notified of the delegate’s decision in the first instance. It had regard to the fact that the applicant had previously sought review of that delegate’s decision and to the provisions of the Migration Act in relation to notification of decisions. It also had regard to the fact that the initial application for review had been accepted by the Tribunal which had conducted a review.
It found that the second review application was received by it outside the mandatory time limit under the provisions of the Migration Act and hence that it had no jurisdiction and, in any event, that as it had already discharged its functions under the Migration Act to review the delegate’s decision in issue, it no longer had jurisdiction in relation to that decision.
In the application for review the applicant relies on general and unparticularised grounds: that the Tribunal failed to act according to migration law and regulation; did not apply the correct laws when it considered this matter; misinterpreted the migration laws and failed to exercise its jurisdiction under the Migration Act.
When asked whether he wished to make any submissions in relation to whether the proceedings were an abuse of process, the applicant said that he had nothing to add to what appeared in his application for review of the Tribunal decision, beyond indicating that he had a lack of familiarity with legal matters.
In this instance, there is nothing on the material before the Court to indicate that the application for judicial review of the second Tribunal decision has any prospect of establishing a jurisdictional error. There is no argument put forward or apparent which has any prospect of establishing jurisdiction in the Tribunal to further consider the applicant’s application for a protection visa. Allowing the proceedings to continue in circumstances where there has been a delegate’s decision of which the applicant has had a review by the Tribunal such that it has discharged its functions under the Act, and where there has been judicial review by this Court and in the Federal Court in relation to the decision on the merits of the protection visa application, is a situation which I am satisfied would bring the administration of justice into disrepute (see Walton v Gardiner (1993) 177 CLR 378 at 393 and see SZILE v MIMIA [2006] FMCA 957 at [11]). The applicant’s litigation history is also a matter to be taken into account. In comparable circumstances (although it appears that there was also an additional intervening application to the court in relation to review of a delegate’s decision) Rares J in SZDMO v MIMA [2006] FCA 989 at [6] and [8] held that such proceedings were a plain abuse of the process of the Court.
It is relevant for the Court to have regard to all of the circumstances. I have done so as far as possible on the material before me, including having 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. In all the circumstances of this case I am satisfied that the present proceedings should be dismissed as an abuse of process.
As indicated, the submissions of the respondent addressed the issue of abuse of process but not the grounds that the application was frivolous or vexatious or that the applicant had no reasonable prospect of successfully prosecuting the proceeding or claim. In these circumstances I consider it appropriate to dismiss the proceedings under Rule 13.10(c) of the Federal Magistrates Court Rules. However it has not been established that it is appropriate that the Registry not accept for filing any further application for review of any of the decisions or any other decision relating to the applicant’s application for a protection visa without prior leave of the court.
The respondent has succeeded in its notice of motion. It is appropriate in those circumstances that the applicant pay the costs of the first respondent in the amount of $1,500.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 1 February 2007
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