SZFRF v Minister for Immigration
[2006] FMCA 48
•16 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFRF v MINISTER FOR IMMIGRATION | [2006] FMCA 48 |
| MIGRATION – Protection visa application – judicial review of the delegate’s decision – decision previously affirmed by Refugee Review Tribunal and its decision upheld by Federal Magistrates Court, Federal Court and High Court – new application dismissed as an abuse of process. |
Federal Magistrates Court Act 1999 (Cth), ss.14, 15
Federal Magistrates Court Rules 2001 (Cth), Rule 13.10
Migration Act 1958 (Cth), ss.66, 91X
Judiciary Act 1903 (Cth), s.39B
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
SZFRF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1171
SZGKO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1254
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549
Walton v Gardiner (1993) 177 CLR 378
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844
NALE v Minister for Immigration [2003] FMCA 366
Kosi v Minister for Immigration [2003] FMCA 340
| Applicant: | SZFRF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2884 of 2005 |
| Delivered on: | 16 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 16 January 2006 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms E Palmer |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The respondent’s application filed on 29 November 2005 is upheld.
The application for judicial review filed on 7 October 2005 is dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth).
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Paula Cristofanini File No: N00/32754) made on 4 April 2002 and handed down on 30 April 2002 or the decision of the delegate of the Minister for Immigration (of Dietmar Kahles File No: CLF2000/4463) handed down on 9 March 2000 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,900 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2884 of 2005
| SZFRF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 29 November 2005, the respondent seeks an order that the applicant’s application be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Court Act 1999 (Cth) on the following grounds:
a)An order that the application filed on [7 October 2005] be dismissed pursuant to Rule 13.10(b) and/or Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“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 applicant is barred by res judicata and/or is estopped from bringing these proceedings.
c)Further or in the alternative, an order that the Court does not have jurisdiction to hear the matter, the application having been made out of time, pursuant to section 477(1) of the Migration Act 1958 (Cth).
d)An order pursuant to 13.11(3) of the Rules that:
i)any proceeding instituted by the applicant against the respondent may not be continued without the leave of the Court;
ii)the applicant may not institute any proceeding against the respondent without the leave of the Court.
e)Such further orders as the Court sees fit.
f)Costs.
For the purposes of this application, the respondent tendered and applied for the affidavit of Ellie Jane Palmer sworn on 14 November 2005 (“the affidavit of Ms Palmer”) 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 of Australia on 7 October 2005 for a review of the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) made on 9 March 2000 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the delegate.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZFRF”.
Background
The applicant, who claims to be a citizen of India, arrived in Australia on 3 January 2000. On 25 January 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 9 March 2000 the delegate refused to grant a protection visa and on 3 April 2000 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision. On 4 April 2002 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa. That decision was handed down on
30 April 2002.
The applicant stated he is a married man in his mid 30’s and is from a village near Calcutta. His wife and son remain in India. The applicant, who trained and worked as a cook, claimed to have left India to avoid persecution as a consequence of his active involvement with the Congress Party after the Party was defeated at election. According to the applicant, political supporters of parties in power harassed him, injured him in an attack, burned down his shop and made false accusations against him. The applicant claimed he was unable to obtain protection from the authorities as they support those who are in power. He claimed to fear he would continue to be persecuted if he were to return to India (Tribunal’s decision p.5 annexed to the affidavit of Ms Palmer).
Litigation history
Ms Palmer, Solicitor for the respondent, prepared a convenient summary of the litigation history of the application and I adopt paragraphs 2-17 for the purpose of this judgment:
[2]On 30 April 2002, the Refugee Review Tribunal handed down its decision, made on 4 April 2002, the subject of these proceedings (“the RRT’s decision”). (A copy of the Tribunal’s decision is annexed to the affidavit of Ms Palmer.)
[3]On 3 May 2002, the applicant filed in the Federal Court of Australia an application for review of the RRT’s decision. (A copy of the application is annexed to the affidavit of Ms Palmer.)
[4]On 1 August 2002, his Honour Federal Magistrate Driver dismissed the application having found that no jurisdictional error attended the RRT’s decision. (A copy of FM Driver’s reasons for judgment is annexed to the affidavit of Ms Palmer.)
[5]On 21 August 2002, the applicant filed a notice of appeal in the Federal Court of Australia. (A copy of the notice of appeal is annexed to the affidavit of Ms Palmer.)
[6]On 6 December 2002, his Honour Justice Moore dismissed the applicant’s appeal to the Federal Court. (A copy of Moore J’s reasons for judgment is annexed to the affidavit of Ms Palmer.)
[7]On 18 December 2002, the applicant filed an application for special leave to appeal in the High Court of Australia. (A copy of a facsimile from the High Court dated 6 January 2003 is annexed to the affidavit of Ms Palmer.)
[8]On 26 June 2003, the applicant’s application for special leave to appeal was deemed abandoned. (A copy of the application for special leave to appeal is annexed to the affidavit of Ms Palmer.)
[9]On 11 July 2003, the applicant filed an application for special leave to appeal in the High Court of Australia. (A copy of the application for special leave to appeal is annexed to the affidavit of Ms Palmer.)
[10]On 28 January 2004, the applicant’s application for special leave to appeal was deemed abandoned. (A copy of the Certificate of Deemed Abandonment dated 28 January 2004 is annexed to the affidavit of Ms Palmer.)
[11]On 13 February 2004, the applicant filed an application for special leave to appeal in the High Court of Australia. (A copy of the application for special leave to appeal is annexed to the affidavit of Ms Palmer.)
[12]On 27 January 2005, the applicant discontinued his application for special leave to appeal in the High Court of Australia. (A copy of the notice of discontinuance is annexed to the affidavit of Ms Palmer.)
[13]On 8 February 2005, the applicant filed an application in the Federal Magistrates Court seeking judicial review of the RRT’s decision. (A copy of the application is annexed to the affidavit of Ms Palmer.)
[14]On 15 June 2005 her Honour Federal Magistrate Barnes dismissed the application pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth). (A copy of Barnes FM’s reasons for judgment is annexed to the affidavit of Ms Palmer.)
[15]On 27 June 2005, the applicant filed an application for leave to appeal in the Federal Court of Australia. (A copy of the application for leave to appeal is annexed to the affidavit of Ms Palmer.)
[16]On 2 August 2005, his Honour Justice Hill dismissed the applicant’s application for leave to appeal and made orders requiring the applicant to obtain the Court’s leave prior to filing any further judicial review proceedings. (A copy of Hill J’s reasons for judgment is annexed to the affidavit of Ms Palmer.)
[17]On 7 October 2005, the applicant filed the present application for review in the Federal Magistrates Court. (A copy of the application for review is annexed to the affidavit of Ms Palmer.)
Respondent’s submissions
Ms Palmer, Solicitor appearing for the respondent, provided written submissions in support of her application and I adopt paragraphs 21-27 for the purpose of this judgment:
[21]The Minister’s case for the motion is that the application discloses no reasonable cause of action because:
a)even if there were any jurisdictional error affecting the decision of the delegate, it was “cured” by the decision of the Tribunal, which has been held not to be invalid;
b)relief in respect of the delegate’s decision would be futile and serve no legal purpose;
c)the application has been made for an unwarranted purpose, namely to engage in protracted litigation with the Minister in order to obtain further bridging visas;
d)there is an unwarranted delay in seeking review of the delegate’s decision and also inconsistency in the type of relief sought by the applicant in his various proceedings; and
e)in any event, the applicant is estopped on Anshun principles from attacking this decision in the present proceedings. If it is capable of being attacked, it should have been attacked when the Tribunal’s decision was challenged.
[22]The delay in raising the present challenge in conjunction with the estoppel also amounts to an abuse of process.
[23]As a general principle, the Court should not hear a challenge to a primary decision and a review decision at the same time. If the review decision is flawed, it will be sufficient to provide relief in respect of it. If the review decision is not flawed, it will have “cured” the primary decision: Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 per Wilcox J at 298-299.
[24]That a valid Tribunal decision will “cure” a primary decision has been recently approved by the Full Court: Yilmaz v Minister forImmigration & Multicultural & Indigenous Affairs (2000) 100 FCR 495 per Gyles J at [92]-[96]; Zubair v Minister forImmigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; and Minister forImmigration & Multicultural & Indigenous Affairsv Ahmed [2005] FCAFC 58. See also NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 783.
[25]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 per Mason J at 116.
[26]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 and the decision on review was not flawed by error subject to correction in judicial review proceedings.
[27]It follows that, in the present circumstances, whatever merit the applicant might have in his review application, absent the Tribunal’s decision, his present application must fail.
Applicant’s submissions
The applicant filed written submissions prior to the hearing which contained a number of new grounds not contained in the original application. This application contained a number of generic submissions which do not appear to address the issues before the Court. The initial part of the document sets out broad grounds for judicial review with references to judicial authority that support the generic submission but have little relevance to the judicial review of the applicant’s decision made by the delegate. Attached to the back of the document was a number of photocopied letters written by the applicant to various police precincts within India. Replies to those letters from the various police stations were also provided. There was no supporting documentation or submissions indicating the purpose of the various correspondences. When the applicant was asked if he wished to make any oral submissions in support of his application, he made a brief reference that the submissions contained extra papers in support of his case but this submission was not developed.
Reasons
This is an interlocutory application by the Minister filed on
29 November 2005. The Minister seeks the summary dismissal of the application pursuant to Rule 13.10(b) and/or Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). These allow dismissal on the grounds that the proceedings are frivolous or vexatious or that the proceedings are an abuse of process of the Court. Due to the litigation history engaged in by the applicant, set out above in summary form at paragraph 7, I propose to deal with the application on the basis of an abuse of process of the Court and whether the present application is “plainly untenable and arguably doomed to failure”: NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs at [61].
In the proceedings immediately preceding the current application, his Honour Hill J, after dismissing that application, made the comment in SZFRF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1171 at [18]-[19]:
“… There is a time when litigation must come to an end.
This is particularly so when there is nothing in the submissions which the applicant has put before me which indicates error and that all the applicant is seeking to do is to once again reargue the same matters, albeit in somewhat slightly different language.”
His Honour then made the following Order at [20]:
“It seems to me that it is appropriate that an order be made to stop the applicant from continuing this course of conduct. In the circumstances, I propose to make the following orders: first, that the applicant for leave/appellant be restrained from commencing any further application for judicial review under s 39B of the Judiciary Act in respect of the decision of the Refugee Review Tribunal given on 30 April 2002, without leave of the court, and whether in this court or in the Federal Magistrates Court; second, that no application for judicial review of that decision be accepted for filing in this court, except by leave of a judge of this court …”
The applicant appears to have accepted the finality of his litigation in respect of the Tribunal’s decision but in his new application to this Court has adopted a precedent application which has circulated in recent times. This seeks to justify renewed litigation in relation to the administrative decision-making process used to determine his protection visa application, by challenging the validity of the primary decision of the delegate which was affirmed by the Tribunal. The applicant has now availed himself of a precedent circulated in recent times, which seeks to circumvent the directions against further filing, by framing a fresh application as a challenge to the delegate’s decision which has been affirmed by the Tribunal. I note that a similar approach has been adopted by others and has come to the attention of this Court and has been referred to in the decision of her Honour Barnes FM in SZGKO v Minister for Immigration & Multicultural & Indigenous Affairs and his Honour Smith FM in SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs (“SZGMZ”).
The application before this Court duplicates the application considered in SZGMZ where the application purports to challenge the delegate’s decision on the basis that it is invalid due to an alleged failure to follow notification procedures under s.66 of the Act.
The bringing of the interlocutory application was foreshadowed at the first Court date hearing before me on 15 November 2005. The Minister’s application was filed on 29 November 2005 and was made returnable before me on 16 January 2006. The application was supported by an affidavit annexing numerous Court documents showing the history of the litigation pursued by the applicant in relation to the decision-making on his application for a protection visa which was lodged on 25 January 2000. The applicant was present at the first Court date and it was clear that he was on notice at that time of the Minister’s intention to seek summary dismissal of his application. The applicant complied with orders to file and serve a short outline of submissions by 23 December 2005. The applicant’s submissions made no reference to the Minister’s application for summary dismissal but set out a series of grounds for judicial review, some of which had been previously submitted in applications for review while others appeared to be of a more recent creation. However, nothing contained in the submissions related to the application filed on 7 October 2005 challenging the delegate’s decision.
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 per Mason CJ, Deane and Dawson JJ at 393:
“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 judgment of Smith FM in SZGMZ [22]-[26], upheld on appeal (see SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844), clearly addresses and articulates the four reasons why the present application is an abuse of process and has no prospects of success in obtaining the relief it seeks and is hopeless. This application is a persistent attempt by the applicant to bring unmeritorious applications 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 & Multicultural & Indigenous Affairs where the issue of re-invigorating a proceeding may have been pursued to extend the applicant’s stay in this country. Reference is also made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where his Honour 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.”
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 the orders sought by the respondent. I also consider the circumstances which I have described justify an order for costs on an indemnity basis and that I should give a direction to the Court Registry that it should decline to receive further applications from the applicant concerning any aspect of the decision-making 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 and 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 the Court.
I order the applicant pay the respondent’s costs and disbursements of and incidental to the application on an indemnity basis in the amount of $2,900.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 16 January 2006
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