SZGGS v Minister for Immigration
[2005] FMCA 1071
•1 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGGS v MINISTER FOR IMMIGRATION | [2005] FMCA 1071 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of judicial review application as an abuse of process – applicant previously commencing and discontinuing, or consenting to the dismissal of, other proceedings to review the same RRT decision. |
| Federal Court Rules Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.476, 477, 483A |
| Applicant: | SZGGS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1205 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 1 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
INTERLOCUTORY ORDERS
The judicial review application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1205 of 2005
| SZGGS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion of which notice was given on 26 May 2005 seeking the summary dismissal of a judicial review application filed on 10 May 2005. The judicial review application sought review of a decision of the Refugee Review Tribunal (“the RRT”) made on 13 July 1999. The RRT refused the applicant a protection visa.
The Minister's motion seeks the summary dismissal of the judicial review application pursuant to rules 13.10(b) or (c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on the basis that the proceeding is an abuse of process and is frivolous or vexatious. The Minister also seeks costs.
The motion is supported by the affidavit of Andrew John Crockett filed on 26 May 2005. I accept Mr Crockett's evidence of the facts relevant to the determination of the motion. I incorporate relevant portions of paragraphs 3 to 15 of that affidavit for the purposes of this judgment:
On 9 August 1999 an application for an order of review under Orders 54 and 54B of the Federal Court Rules and s.476 of the Migration Act 1958 (Cth) (“Act”) was filed by the applicant in the New South Wales District Registry of the Federal Court of Australia (“the Federal Court”). The application sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) made 13 July 1999. The Tribunal’s decision affirmed a decision of the delegate of the respondent dated 21 July 1997, refusing to grant the applicant a protection visa. …
On 17 November 1999, Einfeld J of the Federal Court made orders dismissing the application with costs. …
The applicant was a member of the Muin and Lie class action. Pursuant to orders of Gaudron J of the High Court of Australia (“the High Court”) of 25 November 2002, on 30 May 2003 the applicant, through his then solicitors, Bharati Solicitors, filed an affidavit sworn 26 May 2003 annexing a draft order nisi in the Sydney Office of the High Court. The applicant was given the pseudonym "Applicant S1746 of 2003". The draft order nisi sought writs of mandamus and certiorari in respect of the decision of the Tribunal made 13 July 1999. …
Pursuant to the orders of Gaudron J, the proceedings referred to in paragraph 5 were remitted instanter to the New South Wales District Registry of the Federal Court.
On 30 April 2004 Emmett J of the Federal Court by consent made orders that the application be dismissed with costs.
On 17 May 2004 an application under s.483A of the Act was filed by the applicant in the Sydney Registry of the Federal Magistrates Court of Australia (“this Court”), seeking review of the decision of the Tribunal made 13 July 1999. …
On 25 August 2004 the respondent filed a notice of motion, seeking orders that the proceeding … be dismissed as an abuse of the process. …
On 31 August 2004, prior to the hearing of the respondent’s motion on 1 September 2004, the applicant filed a notice of discontinuance. …
On 24 September 2004 the applicant filed in the Federal Court an application for extension of time to file and serve a notice of appeal from the judgment of Einfeld J of 17 November 1999. …
On 9 December 2004 Bennett J of the Federal Court made orders that [that] application … be dismissed with costs. …
On 6 January 2005 the applicant filed in the High Court an application for special leave to appeal from the judgment of Bennett J. …
On 27 April 2005 Hayne and Callinan JJ of the High Court made orders that the [special leave] application … be dismissed. …
On 10 May 2005 an application under s.483A of the Act was filed by the applicant in this Court, seeking review of the same decision of the Tribunal …. The applicant was given the pseudonym "SZGGS".
There have accordingly been five proceedings in this Court, the Federal Court and the High Court in respect of the decision of the RRT. The first judicial review application was made under the then Part VIII of the Migration Act 1958 (Cth) (“the Migration Act”) in 1999. Enfield J dealt with that application on 17 November 1999. His Honour dismissed the application and gave reasons for his decision. The applicant was also a party to the Muin and Lie class action in the High Court and to an individual action instituted pursuant to orders of Gaudron J in the class action. That proceeding was remitted to the Federal Court. His Honour ordered by consent that the application be dismissed and that there be no order as to costs. The applicant disputes from the bar table that he consented to that order but the order speaks for itself. I am told by Mr Markus that the applicant was legally represented at the time.
The applicant also instituted an earlier proceeding in this Court which was discontinued. He was ordered to pay costs as a consequence of that discontinuance. The applicant asserted from the bar table that he discontinued that proceeding due to illness and fear about the possible costs outcome. He suffered a costs order in any event.
The applicant attempted belatedly to obtain an extension of time to appeal against the judgment of Einfeld J. That application was dismissed by Bennett J on 9 December 2004. Her Honour gave reasons for that decision. Her Honour noted that the applicant was seeking to advance at least one new argument in order to secure an extension of time for an appeal. On page 9 of her decision her Honour concluded that the applicant had no prospect of success in an appeal based on the new argument. Special leave to appeal against that decision was refused by the High Court on 27 April 2005. In refusing special leave Hayne J said:
It was the opinion of the Federal Court that the applicant had no prospects of success in an appeal based either on any of the matters put before the Federal Court on the earlier occasion, or any of the new matters sought to be raised by the applicant, and accordingly dismissed the application.
His Honour continued:
The applicant's written case reveals no reason to doubt the correctness of the decision to refuse the extension of time.
In these circumstances, I have some reason to doubt my jurisdiction to consider the present application for judicial review. If it can be said that the Federal Court and the High Court have already decided that the decision of the RRT was a privative clause decision, then it is not open to this Court to make a different decision. I have previously held that in such circumstances this Court has no jurisdiction and an application made out of time, by reference to s.477 of the Migration Act, must be dismissed for want of jurisdiction.
The issue in this case is clouded by the fact that the application for an extension of time may have been limited to the grounds of review available under the now repealed Part VIII of the Migration Act. In those circumstances, I cannot be satisfied that Bennett J and the High Court had determined conclusively that the decision of the RRT is a privative clause decision. I am, however, persuaded that I should grant the Minister's motion on the basis that the present judicial review proceeding is an abuse of process.
The present judicial review application is, on its face, not very informative. Whatever issues the applicant now seeks to raise could have been raised in the earlier proceedings before this Court that were discontinued. They could also have been raised in the earlier proceedings in the High Court that were remitted to the Federal Court and dismissed by consent. 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 the same issues again. Further, to the extent that those issues could have been raised and were not, the principle of Anshun estoppel would apply.
The applicant filed written submissions in opposition to the Minister's notice but I am not assisted by them. They bear little relationship to his judicial review application. The applicant told me that the submissions were prepared by others in the Bengali community who are assisting him. In my view the applicant has abused the Court's process by repeatedly filing legal proceedings seeking to review the same decision of the RRT.
I dismiss the judicial review application as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.
On the question of costs, Mr Markus seeks an order for costs fixed in the sum of $1,600. I have no difficulty in accepting that costs of that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. It may be that in the circumstances the Minister would have been entitled to an indemnity costs order. In any event the Minister will obtain the costs order she seeks. The applicant sought to avoid a costs order by referring to his impecuniosity but that is not a reason for the Court to refrain from making the costs order. The applicant could have had no doubt as to the costs risks he faced given his experience in the earlier proceedings.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $1,600.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 August 2005
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