SZGIM v Minister for Immigration
[2006] FMCA 47
•16 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGIM v MINISTER FOR IMMIGRATION | [2006] FMCA 47 |
| MIGRATION – Protection visa application – judicial review of the delegate’s decision – decision previously affirmed by Refugee Review Tribunal and its decision upheld by Federal Magistrates Court, Federal Court and High Court – new application dismissed as an abuse of process. |
Federal Magistrates Court Act 1999 (Cth), ss.14, 15
Migration Act 1958 (Cth), ss.66, 91X
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), Rule 13.10
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
SZGIM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1240
SZGKO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1254
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549
Walton v Gardiner (1993) 177 CLR 378
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844
NALE v Minister for Immigration [2003] FMCA 366
Kosi v Minister for Immigration [2003] FMCA 340
| Applicant: | SZGIM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2912 of 2005 |
| Delivered on: | 16 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 16 January 2006 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Mr I Muthalib |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The respondent’s Notice of Motion filed on 7 December 2005 is upheld.
The application for judicial review filed on 11 October 2005 is dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth).
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Rodney Inder File No: N02/43355) made on 3 March 2003 and handed down on 25 March 2003 or the decision of the delegate of the Minister for Immigration (of T V Morgan File No: CLF2002/20711) handed down on 28 June 2002 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,500 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2912 of 2005
| SZGIM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Motion filed on 7 December 2005, the respondent seeks an order that the applicant’s application be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Court Act 1999 (Cth) on the following grounds:
1.that the proceeding be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that:
(a)no reasonable cause of action is disclosed in relation to the proceeding; or
(b)the proceeding is frivolous or vexatious; or
(c)the proceeding is otherwise an abuse of process.
2.that the applicant not be permitted to institute any proceedings in this Court, seeking review of the delegate’s decision dated 28 June 2002, without first obtaining the leave of the Court, pursuant to Rule 13.11(3)(b) of the Federal Magistrates Court Rules 2001 (Cth);
3.that the applicant pay the respondent’s costs of the proceeding and this notice of motion on an indemnity basis; and
4.such further or other orders that the Honourable Court sees fit.
For the purposes of this application, the respondent tendered and applied for the affidavit of Ishan Fuad Muthalib sworn on 5 December 2005 (“the affidavit of Mr Muthalib”) to be admitted into evidence.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 11 October 2005 for a review of the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) made on
28 June 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the delegate.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZGIM”.
Background
The applicant, who claims to be a citizen of India, arrived in Australia on 22 March 2002. On 10 April 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 28 June 2002 the delegate refused to grant a protection visa and on 5 July 2002 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision. On 3 March 2003 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa. That decision was handed down on
25 March 2003 (see affidavit of Mr Muthalib at p.11).
The applicant, who was born in India, claims to be ethnically a Tamil Muslim and his religion is Islam. The applicant’s adviser, in his covering submissions, claimed that the applicant is a “victim of assault, abuse and torture and suffered from the traumatic experience that he had in India”. The applicant claimed that if he remained in India he would be “at risk of being arrested and detained under TADA Act and/or POTB Bill 2001 and fear of serious human rights abuses, torture and persecution in the present animosity and hatred against the Muslims to be guilty of committing a serious offence or perceived to be radicals of political opinion”. The applicant claimed he was “detained and interrogated previously as a protestor and a dissident and now perceived as a possible sympathiser or a person with links with any Muslim radical movement” and is “at risk of further detention, interrogation and torture if there is any problem concerning any alleged incident or attack by any Muslim radical groups in Tamil Nadu”. The applicant also claimed that, as a Muslim, he spent most of his time outside his home town in the north and he would be perceived as a Muslim radical or sympathiser and continue to face real persecution and human rights abuses by the Indian Police and the government authorities. The applicant claimed he came to Australia because he could not cope with any more aggressive interrogation and torture due to his fragile state of mind and health and feared he would face further mistreatment and even death at the hands of the Indian police (see affidavit of Mr Muthalib at p.14).
Litigation history
Mr Muthalib, Solicitor for the respondent, prepared a convenient summary of the litigation history of the application and I adopt paragraphs 2-13 for the purpose of this judgment:
[2]On 31 March 2003, the applicant applied to the Federal Court for review of a decision made by the Refugee Review Tribunal (the Tribunal) on 3 March 2003 and handed down on 25 March 2003 (the Decision) (Federal Court File No: N410/2003). (A copy of the application and the Tribunal’s decision are annexed to the affidavit of Mr Muthalib.)
[3]On 2 May 2003, the Honourable Justice Emmett ordered that the matter be transferred to the Federal Magistrates Court and that the applicant file any amended application by 13 June 2003 (A copy of the order is annexed to the affidavit of Mr Muthalib.)
[4]On 12 June 2003 the applicant filed an amended application (A copy of the amended application is annexed to the affidavit of Mr Muthalib.)
[5]On 24 June 2003 the proceedings were transferred to the Federal Magistrates Court (Federal Magistrates Court File No: SZ1010/2003). (A copy of a letter from the Federal Magistrates Court is annexed to the affidavit of Mr Muthalib.)
[6]On 20 July 2004, Federal Magistrate Raphael dismissed the application with costs. (A copy of the order and reasons for judgment are annexed to the affidavit of Mr Muthalib.)
[7]On 9 August 2004, the applicant filed a notice of appeal in the Federal Court (Federal Court File No: N1210/2004) appealing the decision of Federal Magistrate Raphael. On 11 October 2004 the applicant filed an amended notice of appeal. (A copy of the notice of appeal and amended notice of appeal are annexed to the affidavit of Mr Muthalib.)
[8]On 26 October 2004, the appellant appeared by the Honourable Justice Moore at hearing. On 3 November 2004 Moore J dismissed the applicant’s appeal. (A copy of the order and reasons for judgment are annexed to the affidavit of Mr Muthalib.)
[9]On 26 November 2004, the applicant filed an application for special leave to appeal in the High Court (High Court File No: S461 of 2004). (A copy of the application for special leave to appeal is annexed to the affidavit of Mr Muthalib.)
[10]On 21 April 2005, McHugh and Heydon JJ of the High Court dismissed the special leave application. (A copy of the orders and reasons for judgment are annexed to the affidavit of Mr Muthalib.)
[11]On 11 May 2005, the applicant filed an application in the Federal Magistrates Court (Federal Magistrates Court File No: SYG1287 of 2005 (SZGIM)) seeking review of the decision, the subject of all previous judicial review proceedings. (A copy of the application is annexed to the affidavit of Mr Muthalib.)
[12]On 11 August 2005, Federal Magistrate Scarlett dismissed the application on the basis that it was an abuse of process and that it was incompetent and ordered the applicant to pay the respondent’s costs on an indemnity basis. (A copy of the order and reasons for judgment are annexed to the affidavit of Mr Muthalib.)
[13]On 11 October 2005, the applicant filed an application in the Federal Magistrates Court (Federal Magistrates Court File No: SYG2912/2005) seeking review of the delegate’s decision made on 28 June 2002. (A copy of the application and delegate’s decision and letter to the applicant dated 28 June 2002 are annexed to the affidavit of Mr Muthalib.)
Respondent’s submissions
Mr Muthalib, Solicitor appearing for the respondent, provided written submissions in support of his application and I adopt paragraph 4 for the purpose of this judgment:
[4.1]The Minister’s case for the motion is quite simple. First, it is said that the application discloses no reasonable cause of action because:
a)even if there were any jurisdictional error affecting the decision of the delegate, it was “cured” by the decision of the Tribunal, which has been held not to be invalid (see SZGKO v MIMIA [2005] FMCA 1254 at [24]); and
b)in any event, the applicant is estopped on Anshun principles from attacking this decision in the present proceedings. If it is capable of being attacked, it should have been attacked when the Tribunal’s decision was challenged (see . SZGKO v MIMIA at [23]; NAWW v MIMIA [2005] FMCA 783 at [4]).
[4.2]Secondly, given the effect of a valid Tribunal decision on any defects in the delegate’s decision (which defects are not conceded), the asserted grounds of review are plainly “untenable” (see NBGZ v MIMIA [2005] FCAFC 119) and therefore the Court could be satisfied that the proceeding is frivolous and vexatious: see SZGKO v MIMIA at [27].
[4.3]Finally, the delay in raising the present challenge in conjunction with the estoppel also reveals an abuse of process: SZGMZ v MIMIA [2005] FMCA 1549; SZGMZ v MIMIA [2005] FCA 1844.
[4.4]If a decision of a delegate is the subject of merits review by the Tribunal, the review decision (if not flawed) will have “cured” any defect in the primary decision: Wu v MIEA (1994) 48 FCR 294 per Wilcox J at 298-299. That a valid Tribunal decision will “cure” a primary decision has been approved by the Full Court: Yilmaz v MIMIA (2000) 100 FCR 495 per Gyles J at [92]-[96]; Zubair v MIMIA [2004] FCAFC 248; and MIMIA v Ahmed [2005] FCAFC 58. See also NAWW v MIMIA [2005] FMCA 783, SZGKO v MIMIA.
[4.5]While what is precisely meant by the metaphor of a delegate’s decision being “cured” is not entirely clear, the metaphor has been adopted at the highest judicial levels: Twist v Randwick Municipal Council (1976) 136 CLR 106 per Mason J at 116.
[4.6]It is clear, at least, that it means that a court will not give relief in respect of a delegate’s decision when a person affected by the decision has had the opportunity to seek a de novo merits review and that opportunity was taken and the decision on review was not flawed by error subject to correction in judicial review proceedings.
[4.7]It follows that, in the present circumstances, whatever merit the applicant might have in his judicial review application absent the Tribunal’s decision, his present application must fail.
Applicant’s submissions
The applicant did not file any written submissions prior to the hearing and when invited to make oral submissions he proceeded to describe his failing health and his concern about returning to India because he feared harassment by the Indian police. The applicant stated that he would voluntarily return to India if the current political party lost power at the next elections and the opposition was to form government.
Reasons
This is an interlocutory application by the Minister filed on
7 December 2005. The Minister seeks the summary dismissal of the application pursuant to Rule 13.10(a), 13.10(b) and/or 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). These allow dismissal on the grounds that the proceedings are frivolous or vexatious or that the proceedings are an abuse of process of the Court. Due to the litigation history engaged in by the applicant, set out above in summary form at paragraph 7, I propose to deal with the application on the basis of an abuse of process of the Court and whether the present application is “plainly untenable and arguably doomed to failure”: NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs at [61].
In the proceedings immediately preceding the current application, his Honour Scarlett FM, after dismissing that application, made the following order in SZGIM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1240:
“The applicant is restrained from commencing any further proceedings for review of the Refugee Review Tribunal’s decision made on 3 March 2003 and handed down on 25 March 2003 without leave of the Federal Magistrates Court.”
The applicant appears to have accepted the finality of his litigation in respect of the Tribunal’s decision but in his new application to this Court has adopted a precedent application which has circulated in recent times. This seeks to justify renewed litigation in relation to the administrative decision-making process used to determine his protection visa application, by challenging the validity of the primary decision of the delegate which was affirmed by the Tribunal. The applicant has now availed himself of a precedent circulated in recent times, which seeks to circumvent the directions against further filing, by framing a fresh application as a challenge to the delegate’s decision which has been affirmed by the Tribunal. I note that a similar approach has been adopted by others and has come to the attention of this Court and has been referred to in the decision of her Honour Barnes FM in SZGKO v Minister for Immigration & Multicultural & Indigenous Affairs and his Honour Smith FM in SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs (“SZGMZ”).
The application before this Court duplicates the application considered in SZGMZ where the application purports to challenge the delegate’s decision on the basis that it is invalid due to an alleged failure to follow notification procedures under s.66 of the Act.
The bringing of the interlocutory application was foreshadowed at the first Court date hearing before me on 15 November 2005. The Minister’s application was filed on 7 December 2005 and was made returnable before me on 16 January 2006. The application was supported by an affidavit annexing numerous Court documents showing the history of the litigation pursued by the applicant in relation to the decision-making on his application for a protection visa which was lodged on 10 April 2002. The applicant was present at the first Court date and it was clear that he was on notice at that time of the Minister’s intention to seek summary dismissal of his application.
The applicant did not comply with orders to file and serve a short outline of submissions by 23 December 2005.
The current application filed in this Court is plainly an attempt to re-litigate a case already disposed of and it should be dismissed as an abuse of process: Walton v Gardiner per Mason CJ, Deane and Dawson JJ at 393:
“Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”
In my opinion, the judgment of Smith FM in SZGMZ [22]-[26], upheld on appeal (see SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844), clearly addresses and articulates the four reasons why the present application is an abuse of process and has no prospects of success in obtaining the relief it seeks and is hopeless. This application is a persistent attempt by the applicant to bring unmeritorious applications to the Court. I therefore propose to dismiss the present application. In coming to this decision I am also guided by the decision of his Honour Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where the issue of re-invigorating a proceeding may have been pursued to extend the applicant’s stay in this country. Reference is also made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where his Honour Driver FM states:
“… It would be an abuse of the Court's process to file an application for review simply for the purpose of extending the period of one's stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances there is potential for the Court's process to be abused by an applicant whose only purpose is to take advantage of that delay.”
Conclusion
For the above reasons, I consider the present application is an abuse of process and it is appropriate to dismiss it summarily. I propose to make the orders sought by the respondent. I also consider the circumstances which I have described justify an order for costs on an indemnity basis and that I should give a direction to the Court Registry that it should decline to receive further applications from the applicant concerning any aspect of the decision-making on his protection visa application. If the applicant can demonstrate an issue affecting his current entitlements which has not been decided against him in his previous litigation and which requires adjudication about the decision-making, then he would be allowed to commence another proceeding. However, the applicant will have to show a controversy which properly requires the attention of the Court.
I order the applicant pay the respondent’s costs and disbursements of and incidental to the application on an indemnity basis in the amount of $2,500.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 16 January 2006
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