SZGGS v Minister for Immigration
[2005] FMCA 1730
•23 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGGS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1730 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – natural justice – primary decision – where Applicant did not disclose that an application for review had been previously heard by the Refugee Review Tribunal. PRACTICE & PROCEDURE – Abuse of process – estoppel – Anshun estoppel – issue estoppel – res judicata – whether aggravated abuse of process – summary dismissal – whether Applicant is a vexatious litigant – institution of a vexatious proceeding – whether Applicant has “habitually, persistently and without reasonable grounds” instituted other vexatious proceedings. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 476, 477
Federal Magistrates Court Rules 2001, Rules 13.10, 13.11
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
SZCTH v Minister for Immigration (No. 1) [2004] FMCA 211
NAMG v Minister for Immigration (No.1) [2003] FMCA 541
SZGKO v Minister for Immigration [2005] FMCA 1254
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001)
206 CLR 57
NAWW v Minister for Immigration [2005] FMCA 783
SZAGN v Minister for Immigration [2005] FMCA 1065
| Applicant: | SZGGS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2672 of 2005 |
| Delivered on: | 23 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Crockett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Respondent’s Notice of Motion is upheld.
That the Application filed on 21 September 2005 be dismissed under the provisions of Rule 13.10 (a) of the Federal Magistrates Court Rules2001 as failing to disclose a reasonable cause of action.
In the alternative, that the Application filed on 21 September 2005 be dismissed under the provisions of Rule 13.10 (b) as vexatious.
Further in the alternative, that the Application filed on 21 September 2005 be dismissed under the provisions of Rule 13.10 (c) as an abuse of the process of the Court.
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.
That the Applicant is to pay the Respondent’s Minister’s costs of these proceedings fixed on an indemnity basis in the sum of $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2672 of 2005
| SZGGS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
On 21st September 2005 the Applicant filed an application for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as the Minister was called in those days) made on 21st July 1997. The delegate refused to grant the Applicant a protection visa.
The application initially came to court on 24th October 2005. On that same date, the solicitors for the Respondent Minister filed a Notice of Motion and an affidavit of Andrew John Crockett, sworn on 12th October 2005.
Notice of Motion
The Notice of Motion seeks summary dismissal of the application on one or more of the following bases:
a)no reasonable cause of action is disclosed in relation to the proceeding;
b)the proceeding is frivolous or vexatious; and
c)the proceeding is an abuse of process.
The Notice of Motion also seeks the following orders:
a)
that the Registry not accept for filing any further application for review of the decision of the Refugee Review Tribunal dated
13 July 1999 reference N97/18853;
b)that the Registry not accept for filing any further application for review of the delegate of the Respondent dated 21 July 1999; or
c)that the Registry not accept for filing any further application for review of any further notification of either the Refugee Review Tribunal or delegate’s decisions without prior leave of the Court; and
d)that the Applicant pay the Respondent’s costs on an indemnity basis.
The Applicant originally refused to admit the affidavit of Mr Crockett that was filed in support of the Notice of Motion. Mr Crockett was present in court and available for cross-examination if necessary.
I asked the Applicant about each of the matters referred to in Mr Crockett’s affidavit and he admitted that they did in fact apply to him. The affidavit, with its annexures, sets out the history of the Applicant’s litigation under the Migration Act 1958 in this Court, the Federal Court and the High Court.
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, on virtually identical grounds to the Notice of Motion before this Court. 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 these proceedings. The Applicant appeared on 16th of this month 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.
He conceded that he had not made any mention in his application that the decision of the delegate had been reviewed by the RRT and said it was “probably a mistake”.
The Applicant told the court that he did not have any security back in his home country which was why “I keep coming to court”. He said that:
Everybody’s problem is not the same. Everyone had different issues. This is why I have gone again and again to various courts but no-one considered my situation.
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.
Conclusions
It appears to me that the Applicant’s substantive application has no merit at all. The decision of the delegate is a primary decision as defined by s.476 of the Migration Act. Subsection 476(6) defines a primary decision:
In this section:
Primary decision means a privative clause decision:
a) that is reviewable, or has been reviewed, under Part 5 or 7 or section 500; or
b) that would have been reviewable if an application for such review had been made within a specified period.
The delegate’s decision was reviewed under Part 7 of the Migration when it was reviewed by the Refugee Review Tribunal on 13 July 1999.
The Applicant refers to, amongst other decisions, SZCTH v Minister for Immigration (No. 1) [2004] FMCA 211, and NAMG v Minister for Immigration (No.1) [2003] FMCA 541, both being decisions of the Federal Magistrates Court, in support of his contention that under certain circumstances the court has jurisdiction to review a delegate’s decision.
Barnes FM considered a similar situation to the one before me in SZGKO v Minister for Immigration [2005] FMCA 1254, where applicants had previously sought judicial review of a decision of the Refugee Review Tribunal in the Federal Court, and, when the application was dismissed, had unsuccessfully appealed to the Full Court of the Federal Court and, equally unsuccessfully, sought special leave to appeal to the High Court. When the High Court dismissed the application for special leave, the applicants commenced proceedings in this Court seeking review of the decision of the delegate.
Her Honour said that it was not in dispute that the Court has jurisdiction to review a decision of a delegate of the Minister not to grant a protection visa, citing Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, but noted that in that case the applicant had not sought merits review by the Tribunal, being out of time. Similarly, her Honour noted that the Court in both SZCTH (supra) and NAMG (supra) had considered situations where there had been no merits review by the Tribunal before judicial review of a delegate’s decision was sought (see SZGKO at [9] and [20]).
Barnes FM also followed the decision of Raphael FM in NAWW v Minister for Immigration [2005] FMCA 783, where it was held that an application for review of a delegate’s decision brought after an application for review of the Tribunal’s decision did not disclose a reasonable cause of action and should be summarily dismissed under Rule 13.10(a).
In SZAGN v Minister for Immigration [2005] FMCA 1065, Lloyd-Jones FM, in similar circumstances, held that the doctrines of res judicata and issue estoppel applied, and there were no special circumstances to justify the non application of Anshun estoppel. His Honour also held that the proceedings were an abuse of process.
In SZGKO, Barnes FM held that the proceeding before her would, at a final hearing, be met with a defence of Anshun estoppel and the continuance of the proceeding would be an abuse of process. Her Honour also speculated that the Applicant’s proceedings might also be described as frivolous and vexatious, although such a ground was not relied upon in the Notice of Motion before her (see at [26] and [27]).
I am satisfied that there is a clear line of authority in SZGKO, NAWW and SZAGN, to the effect that an application of the type that is before me discloses no reasonable cause of action and is an abuse of process. With respect, I agree with the reasoning of my learned colleagues and consider that I should follow the reasoning in those decisions.
It is a matter of concern that the Applicant did not disclose in his application that the delegate’s decision had already been the subject of a review by the Refugee Review Tribunal. The decision of the Tribunal had also been the subject of two separate applications to the Federal Court and one to this Court. Applications for leave to appeal had been made to the Federal Court on two occasions and once to the High Court of Australia.
I find it hard to believe that the omission by the Applicant of all these details from his application was just a mistake, as he claimed. It appears to me to be a deliberate, if ineffectual, attempt to conceal the true situation from the court.
The Applicant has admitted that he keeps coming back to court in order to re-agitate the same case. It is noteworthy that, whenever one court proceeding ceases, the Applicant commences another within 28 days.
I infer from this that the Applicant is deliberately bringing actions before a court in order to extend a bridging visa. I respectfully agree with the comments of Driver FM quoted in paragraph 15 above that the Applicant seems to be undertaking a process of taking up as much judicial time as possible in order to extend his stay in Australia.I am satisfied that the Notice of Motion should be upheld. It is clear that the Applicant’s application discloses no reasonable cause of action and it is an abuse of the process of the Court. I believe that it is a vexatious proceeding.
I intend to dismiss the application under the provisions of Rule 13.10, sub-rules (a), (b) and (c).
I am not satisfied that, from the Applicant’s comments to the Court, that he will refrain from bringing further proceedings in the future, unless the Court takes action to curtail his behaviour. I am satisfied that the Applicant has instituted a vexatious proceeding, and I am also satisfied that he has habitually, persistently and without reasonable grounds instituted other proceedings in the Federal Magistrates Court and the Federal Court. I will make orders under Rule 13.11 that any proceedings instituted by the Applicant against either or both the Minister and the Refugee Review Tribunal may not be continued without the leave of the Court and that he may not institute a proceeding against either the Minister or the Refugee Review Tribunal without the leave of the Court.
The Applicant is warned that if he persists in his behaviour he is liable to be declared a vexatious litigant.
There is every reason to make an order for costs against the Applicant. It is well established that where proceedings are dismissed as an abuse of process it is appropriate for costs to be awarded on an indemnity basis rather than on the usual party and party and party basis. This is a case for costs on an indemnity basis.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 22 November 2005
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