SZFVC v Minister for Immigration
[2007] FMCA 1368
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFVC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1368 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no reasonable prospect of success – consideration of whether the applications to the Tribunal and this Court are an abuse of the process of the Tribunal and the Court. |
| Federal Magistrates Act 1999 (Cth) Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.474 |
| Jayasinghe v Minister for Immigration (1997) 76 FCR 301 SZASP v Minister for Immigration [2007] FCA 771 |
| Applicant: | SZFVC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2259 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 13 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed summarily pursuant to s.17A of the Federal Magistrates Act 1999 (Cth) and r.13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $2,000.
No further application by this applicant in relation to his protection visa application made on 5 April 2001, including but not limited to any decision on that application or review of any such decision or any notification of any such decision or review is to be accepted for filing in this Court without leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2259 of 2007
| SZFVC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 25 June 2007 and sent to the applicant by letter dated the following day. The Tribunal found that it had no jurisdiction to consider the review before it because the decision of the delegate involved had previously been reviewed by the Tribunal.
The application is supported by an affidavit filed with the application on 23 July 2007 which, together with the application, raises various issues which, in abstract, might go to concerns of jurisdictional error but which do not address the present Tribunal's finding that it lacked jurisdiction. They appear more properly directed to the earlier Tribunal decision. The application asserts that the applicant was actually notified of the Tribunal decision on 28 June 2007. On that basis I find that the application was filed within time. Notwithstanding earlier judicial review proceedings, it does not appear that there was any impediment on the applicant filing his present application.
The Minister filed a response on 6 August 2007 in the following terms:
The first respondent relies upon the following grounds and particulars in defence of the application:
1.The application for judicial review does not provide any particulars or any legal ground of review.
2.The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal handed down on 26 June 2007.
3.The application for review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.
4.The applicant has no reasonable prospect of successfully prosecuting the proceeding and the proceeding should be dismissed pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules.
I advised the parties at the outset of today's first court date hearing that I would deal immediately with paragraph 4 of the response, which raises the application of s.17A of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”) in addition to r.13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The response is supported by the affidavit of Megan Louise Palmer made on 3 August 2007 and written submissions filed on the same day. I received the affidavit of Ms Palmer and declined a request by the applicant for an adjournment so that he could obtain legal advice. It appeared to me that the outcome in this matter is so clear that any delay would be pointless. The affidavit of Ms Palmer sets out an unfortunate litigation history of this applicant. The relevant facts are summarised in the Minister's written submissions. I adopt as background paragraphs 3 through to 11 of those written submissions:
The applicant’s litigation history is contained in the affidavit of Megan Louise Palmer sworn on 3 August 2007.
In summary, the applicant lodged an application for a protection visa on 5 April 2001, and a delegate of the first respondent refused to grant a protection visa to the applicant on 30 April 2001. The applicant lodged an application for review of that decision and on 10 July 2002 the Tribunal affirmed the delegate’s decision.
On 12 March 2003, the applicant lodged an affidavit and draft order nisi in the Adelaide Office of the Registry of the High Court of Australia. These proceedings were given the proceedings number A131 of 2003.
On 11 June 2003, the Honourable Justice Hayne ordered that the further proceedings in this application be remitted to the Federal Court of Australia. The proceedings remitted to the Federal Court of Australia, South Australia District Registry were given the proceedings number S703 of 2003.
On 10 November 2003, the Honourable Justice Mansfield made orders regarding the conduct of the matter and on 18 February 2004, the applicant filed and served a notice of discontinuance in proceedings number S703 of 2003. On 20 February 2004, the Honourable Justice Mansfield ordered that the applicant be given leave to discontinue the proceedings and that the applicant pay the first respondent’s costs.
On 26 August 2004, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia at Sydney. These proceedings were given the proceedings number SZ2669 of 2004. On 18 January 2005, the Honourable Federal Magistrate Lloyd-Jones ordered that the application be dismissed with costs.
On 16 February 2005, the applicant filed an application to set aside the orders of Federal Magistrate Lloyd-Jones dated 18 January 2005. On 7 March 2005, the applicant filed a notice of discontinuance in respect of the application to set aside orders filed on 16 February 2005.
On 3 March 2005, the applicant lodged an application for judicial review in the Federal Magistrates Court of Australia at Sydney in proceedings number SYG554 of 2005. On 28 March 2007, Federal Magistrate Turner dismissed the proceedings numbered SYG554 of 2005 with costs.
Tribunal’s decision
On 14 June 2007, the applicant lodged a second application for review to the Tribunal in respect of the delegate’s decision of 30 April 2001. On 26 June 2007, the Tribunal found that it had no jurisdiction to review the delegate’s decision.[1] The Tribunal found that a full review of the delegate’s decision had been undertaken, and that the Tribunal had already discharged its functions.[2] The Tribunal also noted that the applicant had already unsuccessfully sought judicial review of the first Tribunal decision.[3]
[1]Affidavit of Megan Louise Palmer sworn 3 August 2007, Annexure C, (“the Affidavit”) at page 23.8.
[2] The Affidavit at page 23.6.
[3] The Affidavit, at page 22.4.
Notwithstanding the several judicial review applications lodged by or on behalf of the applicant in respect of the first Tribunal decision, it was not until this year that any of those applications reached a final decision. That decision was made by Turner FM of this Court on 28 March 2007 (see SZFVC v Minister for Immigration [2007] FMCA 283). In particular, at paragraph 43 of that decision Turner FM found that the ground of review raised by the applicant in that case failed, and at para.44 found that the Tribunal decision is a privative clause decision and that pursuant to s.474 of the Migration Act 1958 (Cth), the Court could do nothing further. The applicant has not appealed against that decision. I see no reason to doubt the correctness of Turner FM's decision.
The applicant told me that he was unsatisfied with previous legal advice he had received which involved a strategy of filing multiple judicial review applications against the first Tribunal decision, none of which proceeded to a final hearing before that dealt with by Turner FM. If the applicant was following advice he was very poorly advised to return to the Tribunal for a second attempt to have the Tribunal review the decision of the delegate. The Tribunal’s conclusion that it had no jurisdiction to review the application was plainly correct[4] and the Tribunal was functus officio.[5] That message should now have reached individuals advising applicants in circumstances like the present. However, the Court continues to see applications coming before it where applicants have returned to the Tribunal for a second attempt at review on the merits of a delegate's decision. The fact that this course is continuing to be adopted despite repeated decisions by the Courts that it is pointless suggests that it is a device to achieve objectives other than review on the merits. It is a matter meriting consideration by the Government and the Tribunal.
[4] SZASP v Minister for Immigration [2007] FCA 771 at [4] per Moore J.
[5] Jayasinghe v Minister for Immigration (1997) 76 FCR 301 at 317 per Goldberg J; Singh v Minister for Immigration (2001) 109 FCR 18 at 28 [35] per Merkel J.
The Tribunal was undoubtedly correct in finding that it had no jurisdiction for the reasons that it gave. There is no prospect of the applicant succeeding in his present application. For that reason, pursuant to s.17A of the Federal Magistrates Act and r.13.10(a) of the Federal Magistrates Court Rules, the application should be dismissed summarily. I so order.
The Minister has not sought dismissal also on the basis that the application before the Court is frivolous or vexatious or an abuse of process. However, it is open to me to make such a finding on my own motion. The applicant's litigation history is disturbing. It is no less an abuse of process to occupy Court time on repeated applications which are not permitted to go to a final hearing than it is to occupy Court time in repeated applications and appeals which are unsuccessful. This applicant has through various devices occupied Court time over a number of years. His latest tactic of returning to the Tribunal for a second time when it was plainly not open for him to do so abused the process of the Tribunal.
The present application for judicial review in this Court, which could not possibly succeed, is a further device and is an abuse of this Court's process. The applicant complains of advice he has received and wants to obtain delay to receive further advice. He also complains that he has been misled by this Court by its acceptance of applications made to it. He says if his present application should not have been filed it should not have been received. There is some force in that submission. It is readily remedied. I find that the present application before the Court is an abuse of the Court's process. I will order that no further application by this applicant in relation to his protection visa application made on 5 April 2001, including but not limited to any decision on that application or review of any such decision or any notification of any such decision is to be accepted for filing in this Court without leave of a Federal Magistrate.
An abuse of process having been found, the Minister should receive his costs on an indemnity basis. The Minister's actual costs to this point in this matter are $2,000. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $2,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 August 2007
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