SZGGS v Minister for Immigration
[2008] FMCA 569
•5 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGGS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 569 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal. PRACTICE & PROCEDURE – Application for leave to institute fresh proceedings. |
| Migration Act 1958 (Cth) s.424A Migration Legislation Amendment Act 1998 (Cth) s.3 and sch.3 Federal Magistrates Court Rules 2001 rr.13.10, 13.11, 44.02, 44.05 |
| Alam v MIMIA [1999] FCA 1630 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 Applicant S1746 of 2003 v MIMIA [2004] FCA 1591 SZGGS v Minister for Immigration [2005] FMCA 1071 SZGGS v MIMIA [2005] FCA 1296 SZGGS v Minister for Immigration & Anor [2005] FMCA 1730 SZGGS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 224 SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 378 SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 594 SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 352 SZGGS v Minister for Immigration & Anor [2006] FMCA 1775 SZGGS v Minister for Immigration and Multicultural Affairs [2006] FCA 1753 Egglishaw v Australian Crime Commission [2007] FCAFC 183 BC v Minister for Immigration & Multicultural Affairs [2001] FCA 393 BC v Minister for Immigration & Multicultural Affairs [2001] FCAFC 221 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 |
| Applicant: | SZGGS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2672 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 April 2008 |
| Date of Last Submission: | 29 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Dr Azzi |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Citizenship.
The Application filed on 28 April 2008 is dismissed.
The Applicant is to pay the First Respondent costs fixed in the sum of $2000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2672 of 2005
| SZGGS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant in this case is seeking once again to have the Court review a decision of the Refugee Review Tribunal made on 13th July 1999 affirming the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant requires the leave of this Court to file such an application, as the Court has previously made orders on 23rd November 2005 and 16th November 2006 providing that no further application for review of this decision may be accepted for filing without leave of the Court. That leave will not be forthcoming as the application is entirely without merit.
The Applicant’s History of Litigation
On 21st July 1997, a delegate of the Minister refused the grant of a protection visa to the Applicant. On 15th August 1997 he applied to the Refugee Review Tribunal for a review of that decision.
On 23rd June 1999 the Applicant attended a hearing of the Tribunal and gave oral evidence. The Tribunal made a decision on 13th July 1999, affirming the decision of the delegate not to grant a protection visa.
The Applicant then applied to the Federal Court for an order of review of the RRT’s decision. He filed that application on 9th August 1999. The application was heard on 17th November 1999. Einfeld J dismissed the application. At paragraph 13 of the judgment (Alam v Minister for Immigration & Multicultural Affairs [1999] FCA 1630), his Honour said:
The case has no merit at all and never had any chance of succeeding. In the circumstances there is no reason to refuse an order for costs and every reason to make one. The application will therefore be dismissed with costs.
The Applicant became a member of the Muin/Lie class action (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). He was given the pseudonym “S1746 of 2003” and the proceedings were remitted to the Federal Court. On 30th April 2004, Emmett J made orders by consent dismissing the application.
The Applicant then filed an application to the Federal Magistrates Court on 17th May 2004, seeking a review of the same decision of the Refugee Review Tribunal. On 25th August 2004, the solicitors for the Respondent Minister filed an application for summary dismissal
of the Applicant’s application. That application was returnable on
1st September 2004.
On 31st August 2004 the Applicant filed a notice of discontinuance of his application.
The Applicant’s next application was to the Federal Court, which he filed on 24th September 2004. This application was for an extension of time to file and serve a Notice of Appeal against the decision of Einfeld J that was made on 17th November 1999.
On 9th December 2004 Bennett J heard the application. The Applicant was represented by counsel. After considering the applicant’s case, her Honour dismissed the application, saying:
I am of the view that the applicant has no prospects of success in an appeal based on this new argument, if it is a new argument. The applicant has not demonstrated special reasons for the exercise of a discretion to extend the time for filing the notice of appeal (Applicant S1746 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1591 at [36]).
The Applicant then applied for special leave to appeal to the High Court of Australia, by means of an application filed on 6th January 2005. The High Court dismissed that application on 27th April 2005.
On 10th May 2005 the Applicant filed an application in the Federal Magistrates Court seeking judicial review of the same decision of the Refugee Review Tribunal made on 13th July 1999. That application
was summarily dismissed as an abuse of process by Driver FM on
1st August 2005. In his decision, his Honour said:
The manner in which the applicant has chosen to conduct his various proceedings leads me to the view that he has embarked upon a course of conduct intended to occupy as much judicial time as possible so as to extend his presence in Australia. I have previously held that such an ulterior motive points to an abuse of process. In addition, to the extent that the issues that the applicant now seeks to agitate have been raised in earlier proceedings and dealt with, the applicant would be estopped from raising those same issues again. Further, to the extent that those issues could have been raised and were not, the principles of Anshun estoppel would apply (SZGGS v Minister for Immigration [2005] FMCA 1071 at [10]).
This being a summary dismissal, and therefore an interlocutory order, the applicant applied for leave to appeal against Driver FM’s decision. He filed this application at the Federal Court on 18th August 2005. The application was heard by Emmett J on 7th September 2005. His Honour refused leave to appeal, saying:
On the material before me, the proposed appeal could not possibly succeed and there would be no utility in granting leave to appeal (SZGGS v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 1296 at [8]).
On 21st September 2005, the applicant commenced proceedings for review of the delegate’s decision, which was made on 21st July 1997. The applicant appeared before me on 16th November 2005 unrepresented with a Bengali interpreter. His explanation for commencing these proceedings was that he had not previously challenged the decision of the Department before in any court. The applicant asked the Court to send his application for a protection visa back to the Minister’s delegate, not to the Refugee Review Tribunal.
On 23rd November 2005 I dismissed the application with costs under the provisions of rules 13.10 (a), (b) and(c), finding that it failed to disclose a reasonable cause of action and that it was both vexatious and an abuse of process of the Court.
I also made the following orders, which I am now asked to rescind:
That under the provisions of Rule 13.11 no further application by the Applicant to review the decision of the delegate of the Respondent Minister dated 21 July 1997 or the decision of the Refugee Review Tribunal dated 13 July 1999 may be accepted for filing without leave of the Court.
That under the provisions of Rule 13.11 the Applicant may not institute any proceeding to review the decision of the delegate of the Respondent Minister dated 21 July 1997 or the decision of the Refugee Review Tribunal dated 13 July 1999 without leave of the Court.[1]
[1] SZGGS v Minister for Immigration & Anor [2005] FMCA 1730
The Applicant then sought leave to appeal against this decision.
On 1 March 2006 Rares J dismissed the application (noting that the applicant had failed to appear) saying:
I am of the opinion that there is no substance whatever in the proposed grounds of appeal.[2]
[2] SZGGS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 224 at [12]
I note that on 7th March 2006 the Applicant filed a notice of motion seeking reinstatement of his application. On 15th March 2006 Rares J acceded to the notice of motion and set aside the orders of 1st March. However, his Honour went on to dismiss the application[3].
[3] SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 378 and 594
The Applicant then sought special leave to appeal from the High Court of Australia. The application was deemed abandoned on 8th May 2006. The Applicant then applied to reinstate that application. On 26th June 2006 Heydon J dismissed the application[4].
[4] SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCATrans 352
The Applicant then made a further application to the Refugee Review Tribunal, again seeking a review of the delegate’s decision made on 21st July 1997. On 5th October 2006 the Tribunal found that it had no jurisdiction to deal with the matter because it had previously reviewed the decision on 13th July 1999.
The Applicant then applied to this Court for judicial review of the Tribunal’s decision of 5th October 2006. On 20th November 2006 Raphael FM summarily dismissed the application, saying:
Suffice to say I am satisfied that this is a case where summary judgment should be given on the grounds firstly, that the application itself is doomed to failure because the decision of the Tribunal that it had no jurisdiction is unimpeachable and, secondly, because of the series of proceedings which the applicant has brought previously make this latest proceeding an abuse of the process of the court.[5]
[5] SZGGS v Minister for Immigration & Anor [2006] FMCA 1775 at [3]
His Honour also made this order:
(2) The Registry shall not accept for filing any further application for review of the decision of the delegate of the first respondent dated 21 July 1997 or the decision of the second respondent Refugee Review Tribunal made on 13 July 1999 or the decision of the second respondent Refugee Review Tribunal made on 5 October 2006 or any other decision relating to the applicant’s application for a protection visa lodged on 9 January 1997 without prior leave of the court.
I am also asked to rescind this order.
The Applicant then on 7th December 2006 applied for leave to appeal against this decision. On 14th December 2006 Moore J dismissed this application with costs and made an order that the Registry of the Federal Court of Australia should not accept any further applications without prior leave of the Court[6].
[6] SZGGS v Minister for Immigration and Multicultural Affairs [2006] FCA 1753
The Applicant claims in his supporting affidavit that he applied to the High Court of Australia for special leave to appeal against the decision of Moore J, but says:
However, due to pressure from the Department of Immigration I withdrew my application to the High Court[7].
[7] Applicant’s affidavit affirmed 24 April 2008 at [13]
I have heard no explanation of this statement.
The Current Application
The Applicant now seeks the following Orders:
a)Pursuant to rule 13.11(5) the Court rescind the orders made by Scarlett FM on 23 November 2005 (SYG 2672 of 2005) and Raphael FM on 20 November 2006 (SYG 3112 of 2006) declaring the applicant a vexatious litigant.
b)The Court grant the applicant leave to file and rely on the affidavit affirmed 24 April 2008 by the applicant.
c)The Court grant the applicant leave pursuant to rule 13.11(6) to institute fresh proceedings seeking judicial review of the decision of the second respondent dated 13 July 1999.
d)The applicant be given leave to rely on an application for review made pursuant to rule 44.02(1) and rule 44.05 of the Federal Magistrates Court Rules.
Order 1 is misconceived. Neither Raphael FM nor I declared the Applicant a vexatious litigant, although I found his application filed on 21st September 2005 to be vexatious and warned the Applicant that if he persisted in his behaviour he was liable to be declared a vexatious litigant[8].
[8] [2005] FMCA 1730 at [36]
The Applicant’s Submissions
Counsel for the Applicant, Dr Azzi, seeks to rely on Egglishaw v Australian Crime Commission[9], BC v Minister for Immigration & Multicultural Affairs[10] and Wong v Minister for Immigration & Multicultural & Indigenous Affairs[11]. He submits that the Tribunal fell into jurisdictional error by failing to comply with the provisions of s.424A of the Migration Act and he wishes to rely on the decision of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[12], which he claims in his affidavit[13]
Changed the law in relation to the compulsory procedures mandated by section 424A of the Migration Act.
[9] [2007] FCAFC 183
[10] [2001] FCA 393; [2002] FCAFC 221
[11] [2004] FCAFC 242
[12] [2005] HCA 24
[13] at [11]
He submits that Anshun[14] estoppel does not arise because, apparently, he had no opportunity to raise the issue prior to 18th May 2005, when the High court handed down its decision in SAAP. He points out that he was not legally represented after November 2004.
[14] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Conclusions
The application has no merit. I am not of the opinion that the decisions in Egglishaw, BC or Wong are on point. The fact that the Applicant was not legally represented after November 2004 is irrelevant. That fact certainly does not establish special circumstances.
It is incorrect to claim that the decision in SAAP changed the law relating to s.424A of the Migration Act. Only Parliament has the power to change statute law.
Section 424A was inserted into the Migration Act by the Migration Legislation Amendment Act 1998, s.3 and sch.3. It came into force on 1st June 1999. The Applicant attended a hearing of the Tribunal on 23rd June 1999 and the review was not completed until 13th July 1999, when the Tribunal handed down its decision.
It was open to the Applicant to argue a failure to comply with the Act in the proceedings before Einfeld J in November 1999. He was legally represented by counsel in the proceedings before Bennett J on
9 December 2004. In that case, the Court was told that the Applicant wished to argue these grounds, inter alia:
11.The RRT breached the rules of procedural fairness by failing to give me an opportunity to comment on information, which the RRT relied on.
14.The Tribunal did not provide an opportunity to comment of (sic) materials, which the Tribunal relied on its decision. Thus the Tribunal made an error in terms of procedural fairness in relation to this case.[15]
[15] [2004] FCA 1591 at [14]
It was open to the Applicant to argue a breach of s.424A in the proceedings before Driver FM on 1st August 2005. It was, indeed, open to him to argue that the decision in SAAP should allow him to reopen the proceedings. The appeal against that decision was dismissed by Emmett J on 7th September 2005.
The Applicant’s subsequent proceedings before me in November 2005 involved an application for a further review of the delegate’s decision. The Applicant’s proceedings before Raphael FM in November 2006 involved an application for judicial review of a further application to the Refugee Review Tribunal to review the delegate’s decision.
What the Applicant is now doing is bringing yet another application in order to delay his removal from Australia. The Applicant’s own affidavit, filed on 28th April 2008, clearly sets out his motivation at [5]:
I respectfully say that this application is urgent as my bridging visa remains in effect until 29 April 2008 after which time arrangements are to be made by the Department for my departure.
The application for leave has no merit whatsoever. The Applicant’s history shows that he has sought to review the decision of the Refugee Review Tribunal in the Federal Court, the High Court and the Federal Magistrates Court. He has sought to appeal to the Full Court of the Federal Court and the High Court. He has sought to have the Federal Magistrates Court review the delegate’s decision. He has sought to have the Refugee Review Tribunal review the delegate’s decision again and he has sought judicial review of the Tribunal decision declining to do so. On three occasions courts have ordered that he may not commence further proceedings without leave.
The application for leave will be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 5 May 2008
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