SZFIO v Minister for Immigration
[2006] FMCA 139
•6 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFIO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 139 |
| MIGRATION – Review of delegate’s decision – refusal of a protection visa – summary dismissal of application – delegate’s decision already reviewed by the RRT, which decision had previously been judicially reviewed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.412 |
| Chan Ta Srey v Minister for Immigration [2003] FCA 1292 Minister for Immigration v Alam [2005] FCAFC 132 NAMG v Minister for Immigration (No 1) [2003] FMCA 541 SZGKO v Minister for Immigration [2005] FMCA 1254 |
| Applicant: | SZFIO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3115 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 6 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms E Warner Knight Australian Government Solicitor |
INTERLOCUTORY ORDERS
The title of the respondent be changed to the Minister for Immigration and Multicultural Affairs.
The application is dismissed, pursuant to rules 13.10(a) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $4,000.
No further application by this applicant to review the decision of the delegate made on 8 August 2002 be accepted for filing in this Court, except by leave.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3115 of 2005
| SZFIO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion of which notice was given on 1 December 2005 seeking the summary dismissal of a judicial review application filed on 26 October 2005. The judicial review application sought review of a decision of a delegate of the Minister not to grant the applicant a protection visa. The delegate's decision has been the subject of reconsideration by the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 23 July 2003 and has itself been the subject of judicial review proceedings in this Court.
The Minister's motion is supported by the affidavit of Elizabeth Warner Knight filed on 1 December 2005. I receive that affidavit as evidence. I am satisfied that the facts deposed to in that affidavit are accurate and I accept them. The relevant background facts are adequately summarised in the Minister's written submissions filed on 13 January 2006. I adopt as background paragraphs 2-4 of those written submissions:
The relevant background to this matter is set out in the affidavit of Elizabeth Warner Knight affirmed on 17 November 2005 (“the affidavit”). A Delegate of the respondent refused to grant a protection visa to the applicant on 8 August 2002 (see Annexure A to the affidavit). On 11 September 2002 the applicant lodged an application for merits review of the Delegate’s decision with the RRT (See Annexure B at page 13 of the affidavit). The application to the RRT was a valid application, lodged within the time allowed by s. 412(1) of the Migration Act 1958 (Cth) (“the Migration Act”).
The RRT handed down its decision on 23 July 2003. One year and five months later, on 24 December 2004, the applicant filed an application in this Honourable Court seeking judicial review of the RRT decision. The application was dismissed summarily on the ground that neither the application, or the amended application disclosed any reasonable cause of action. In the course of reaching this conclusion, Scarlett FM reviewed the substantive claims of the applicant and independently reviewed the decision of the RRT for possible jurisdictional error[1]. He could not find any error in the reasoning or the procedure adopted by the RRT. This was also the conclusion reached by Bennett J[2] who considered the RRT decision and the judgment of Scarlett FM in the course of refusing leave to appeal from the judgment of Scarlett FM.
On 26 October 2005 the applicant commenced the present proceedings, this time seeking review of the decision of the Minister’s delegates to refuse a protection visa. The decision under review in this proceeding has already been the subject of review by the RRT and is no longer an operative decision.
[1] Annexure F of the affidavit, page 48
[2] Annexure J of the affidavit, page 61
The RRT decision was dealt with by Federal Magistrate Scarlett in the matter of SZFIO v Minister for Immigration [2005] FMCA 1391. The judicial review application before him was dismissed summarily both because it was considered to be incompetent and because of an abuse of process. In paragraph 40 His Honour said that he had considered himself the decision of the RRT and found no jurisdictional error. His Honour found that the RRT decision was a privative clause decision. That decision was upheld on appeal by the Federal Court.
In the circumstances it is understandable that the applicant has elected not to attempt to have the decision of the RRT judicially reviewed again. Instead his judicial review application seeks to attack the decision of the delegate that preceded the RRT decision. That application is doomed to fail for the reasons advanced by Federal Magistrate Barnes in SZGKO v Minister for Immigration [2005] FMCA 1254. I agree with Her Honour's decision and I adopt for the purposes of this judgment paras.9 and 10 of the Minister's written submissions:
Further and in the alternative, the application should be dismissed as disclosing no reasonable cause of action. The Court in SZGMZ considered that the applicant’s lack of any prospect of success in both his purported claim as to the effect of failure to comply with notification requirements on the validity of the delegate’s decision (or in any other complaint against the delegate’s decision) was a reason for finding that the application was an abuse of process. However, this may be equally considered as a basis to find that the application discloses no reasonable cause of action.
In SZGKO v Minister for Immigration [2005] FMCA 1254, Barnes FM dealt with an application pleaded in identical terms. Her Honour held that the application had no prospect of success because, even if the applicant could establish a jurisdictional error in the delegate’s decision, such defect would be cured by Tribunal’s valid decision: Wu v Minister for Immigration (1994) FCR 294 and Zubair v Minister for Immigration.
The Minister also asserts that the present application is an abuse of process. This is a matter which the applicant considered before filing his judicial review application. Ground 5 of the application states:
This application is not vexatious nor an abuse of process. A delegate's decision can be reviewed by a court under certain Circumstances. The Court has previously reviewed decisions by the delegate in the matters of:
Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292
SZCTH v Minister for Immigration (No 1) [2004] FMCA 211
NAMG v Minister for Immigration (No 1) [2003] FMCA 541
Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132
It is correct that at the time this application was filed an application to review a decision of a delegate of the Minister was not necessarily an abuse of process and, prima facie, the Court had jurisdiction to entertain it. However, the Court has drawn a clear distinction in its decisions between delegate’s decisions that are unreviewable by a review tribunal or have not been reviewed and those that are reviewable and have been reviewed. In the latter case the decision of the delegate is subsumed in the decision of the RRT and any attempt to review the decision of the delegate is both doomed to fail and pointless.
In making his present application the applicant has been poorly advised, if he has been advised. The grounds of review in the application are not particularly informative. Jurisdictional error is asserted but only in fairly general terms. The applicant denied in oral argument that his present application was simply a device to extend his bridging visa. He asserted genuine concerns about the decision of the delegate that he was unable to have effectively dealt with by the RRT as he did not attend a hearing before the RRT.
I accept that the applicant's concerns are genuine although his approach has been misguided. The circumstances, in my view, do not warrant a conclusion that the present application is frivolous or vexatious. However, an application to review a decision of a delegate that is reviewable and has been reviewed by a review tribunal is an abuse of the Court's process. The issue was considered by Federal Magistrate Smith in SZGMZ v Minister for Immigration [2005] FMCA 1549.
I agree with and adopt for the purposes of this judgment paragraph 8 of the Minister's written submissions:
The present proceeding is in identical terms to the application in SZGMZ v Minister for Immigration [2005] FMCA 1549. The reasoning of the Court should be followed and the same orders made. Insofar as the application purports to seek a declaration as to “notification by the delegate of the Minister”, the respondent respectfully adopts the analysis of the Court in SZGMZ at [18]. That is, that:
..the subject matter of the application is only the delegate’s substantive decision refusing the protection visa, and the declaration is subordinate and preliminary to the declaration of invalidity sought in relation to that decision… the application does not identify any other administrative action or decision about which a controversy has developed….
In the circumstances the judicial review application should be dismissed pursuant to rules 13.10(a) and (c) of the Federal Magistrates Court Rules 2001 (Cth) and I will so order.
On the question of costs, the Minister seeks an order for costs on an indemnity basis fixed in the amount of $4,500. The applicant was concerned about the amount of costs sought on the basis of his previous litigation experience. The sum sought is a substantial sum. An indemnity costs award is appropriate on the basis that I have found an abuse of process. The Minister has prepared a substantial affidavit in support of the motion and the Minister has been represented at a directions hearing on 30 November 2005 as well as at the hearing of the motion today. I am persuaded that costs of not less than $4,000 have been reasonably and properly incurred on behalf of the Minister when considered on an indemnity basis.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $4,000.
I will further order that no further application by this applicant to review the decision of the delegate made on 8 August 2002 be accepted for filing in this Court except by leave. I order that the title of the respondent be changed to the Minister for Immigration and Multicultural Affairs.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 February 2006
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