SZFWG v Minister for Immigration
[2005] FMCA 770
•6 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFWG & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 770 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of application as an abuse of process and as having no reasonable prospect of success. |
| Federal Magistrates Court Rules 2001(Cth) |
| First Applicant: Second Applicant: Third Applicant: | SZFWG SZFWH SZFWI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 608 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 6 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms S Zarucki Clayton Utz |
INTERLOCUTORY ORDERS
The application for judicial review is dismissed pursuant to rule 13.10(a) and rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The first applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 608 of 2005
| SZFWG, SZFWH, SZFWI |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an amended interim application by the Minister filed on 1 June 2005. The Minister seeks the summary dismissal of an application for judicial review filed on 10 March 2005. The grounds advanced by the Minister are that the judicial review application is frivolous or vexatious or, further in the alternative, that it is an abuse of process, further or in the alternative, that no reasonable cause of action is disclosed in the judicial review application and, further or in the alternative, that the application is barred by res judicata.
The Minister relies upon two affidavits by Amber Hawkes made on 22 March 2005 and 31 March 2005. In the first affidavit Ms Hawkes annexes the relevant decision of the Refugee Review Tribunal (“the RRT”) and documents relating to earlier proceedings in this Court concerning the same decision of the RRT. In the second affidavit Ms Hawkes annexes a book of relevant documents relating to the decision of the RRT. In the Minister's written submissions there is a useful chronology which I adopt by way of background for the purposes of this judgment:
Date
Description
22 January 2000
The applicants arrive in Australia.[1]
21 July 2003
The applicants apply for a protection (class XA) visa.[2]
22 July 2003
The application for a protection visa is refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister").[3]
4 August 2003
The applicants apply for RRT review of the delegate's decision.[4]
17 December 2003
The RRT affirms the decision of the delegate to refuse the grant of a protection visa to the applicants.[5]
6 August 2004
Applicant SZFWG files an application for judicial review with the Federal Magistrates Court for review of the RRT decision in proceeding no. SYG2468 of 2004 ("the First Proceeding"). [6]
27 August 2004
The matter is listed for directions hearing. The Court directs, inter alia, that:
(a) the applicant file and serve an amended application giving full particulars of each ground of review relied upon by 30 October 2004; and
(b) the matter be listed for hearing at 2.15pm on 10 December 2004.
7 December 2004
Applicant SZFWG consents to orders that the application for judicial review be dismissed. The Consent Orders are filed with the Federal Magistrates Court.[7]
9 December 2004
Federal Magistrate Scarlett orders that:
1. The application be dismissed.
2. The applicant is to pay the respondent's costs fixed in the sum of $2,000.
(the "Order")[8]
22 December 2004
The Order is sealed by the Federal Magistrates Court.[9]
25 January 2005
Applicant SZFWG files an application in the Federal Magistrates Court seeking to set aside the Order.[10]
8 March 2005
Federal Magistrate Scarlett orders that:
1. The application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
2. The applicant pay the respondent's costs fixed in the sum of $1,500.[11]
10 March 2005
The applicants file an application for judicial review in the Federal Magistrates Court ("the Application").[12]
[1] Exhibit AH-1("AH-1") to the Affidavit of Amber Hawkes sworn on 31 March 2005 at 72.
[2] AH-1 at 1-38.
[3] AH -1at 49-54.
[4] AH-1 at 55-58.
[5] AH-1 at 71-85.
[6] Annexure B1 to the Affidavit of Amber Hawkes sworn on 22 March 2005 ("Affidavit").
[7] Annexure B2 to the Affidavit.
[8] Annexure B3 to the Affidavit.
[9] Annexure B3 to the Affidavit.
[10] Annexure C1 to the Affidavit.
[11] Annexure C2 to the Affidavit.
[12] Annexure D to the Affidavit.
Briefly, there have been two earlier proceedings in this Court. In the first proceeding Scarlett FM dismissed the judicial review application by consent on 9 December 2004. In the second proceeding Scarlett FM on 8 March 2005 dismissed an application to vacate the earlier dismissal order when the applicant failed to appear.
The latest judicial review application is made on behalf of three applicants. The third applicant is a child of the first and second applicants. I accept Ms Zarucki's submission that in the application for a protection visa all relevant claims were made by the first applicant. In the circumstances I place no significance on the fact that the second and third applicants were not parties to the earlier proceedings in this Court. Only the first applicant appeared today. The third applicant, being a child, would require a litigation guardian if the proceedings were to go further.
The Minister asserts that the present judicial review application is frivolous or vexatious or an abuse of process. This suggests that the applicant does not have any genuine belief in the application he is pursuing and has some ulterior purpose. It is significant that the earlier judicial review application was dismissed by consent. The first applicant sought to have that order vacated on the basis that he did not know what he was doing. The first applicant failed to appear on the return date of that application and it was dismissed by reason of his non appearance.
I note from the first affidavit of Ms Zarucki that at the time the application to vacate the earlier dismissal order was filed no return date was given. I assume that the return date was advised subsequently although the first applicant asserts he was not told. In my view the application dismissed by Scarlett FM on 8 March 2005 was doomed in any event. While the first applicant asserts that he was suffering from depression and did not know what he was doing when he consented to orders dismissing his first judicial review application he has not presented any medical evidence. The first applicant told me this afternoon that he does not have any medical evidence but that he believes in his heart that he was suffering depression and did not know what he was doing. This is confirmed in paragraph 3 of his written submissions filed in court by leave this afternoon.
In my view, the first applicant probably did know what he was doing when he agreed to his first judicial review application being dismissed by consent. That application did not properly engage the jurisdiction of the Court. While jurisdictional errors in very broad terms were alleged no particulars were given. In the absence of particulars the grounds advanced were meaningless. In my view that judicial review application was on its face doomed to fail. In the circumstances the first applicant acted prudently in agreeing to have it dismissed by consent. As I have already noted the later attempt by the first applicant to have the consent dismissal order set aside was also doomed to fail.
The present judicial review application in substance raises nothing new. The judicial review application purports to raise three grounds and purports to assert jurisdictional error but the particulars given make tolerably clear that the applicant is simply concerned about the merits of the RRT decision. This is confirmed by the applicant's written submissions filed by leave. The first applicant draws attention to the fact that he has been in this country for five years and has done no wrong. He states that he is seeking a longer opportunity to demonstrate that he should receive a protection visa. He is in substance seeking the opportunity to stay in Australia for a longer period. He disagrees with the decision of the RRT but he is unable to advance any coherent legal argument that could support an order setting it aside.
In the circumstances, this further attempt to engage the Court's judicial review jurisdiction in respect of a decision that has already been dealt with by this Court on a final basis abuses the Court's process.
It is unnecessary to decide whether the present judicial review application is barred by the doctrine of res judicata. I make no finding on that issue. I do find that, in addition to being an abuse of the Court's process, the present review application is doomed to fail. The present judicial review application does not in any coherent way assert jurisdictional error. The first applicant's written submissions simply confirm that, while he is concerned about the merits of the RRT decision, that is the extent of his concern. On my reading of the RRT decision the RRT dealt carefully and comprehensively with the issue whether the applicants had faced persecution in Fiji in the past and whether there was any risk that they would suffer persecution in Fiji in the future. On my own reading of the decision and reasons of the RRT I can find no apparent jurisdictional error.
I will dismiss the present application for judicial review as an abuse of process and because it discloses no reasonable cause of action.
On the question of costs, the application having been dismissed, Ms Zarucki sought an order for costs fixed in the sum of $3,000. In that connection, I note that the Minister's interlocutory application has been amended several times which has increased costs. The applicants should not have to bear the costs increased by reason of those amendments. Further, no costs order should be made against the third applicant who is a child and who does not have a litigation guardian. Finally, I am unwilling to make any costs order against the second applicant in circumstances where I do not know what knowledge she has of the judicial review application.
I am satisfied that $2,000 has been properly and reasonably incurred on behalf of the Minister in dealing with the present judicial review application when assessed on a party/party basis. I will order that the first applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 June 2005
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