SZGMZ v Minister for Immigration - [2005] FMCA 1549

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGMZ v MINISTER FOR IMMIGRATION

[2005] FMCA 1549

MIGRATION – Delegate’s decision refusing protection visa – judicial review of validity – applicant previously sought merits review and judicial review of Tribunal decision – application dismissed summarily as abuse of process.

Federal Magistrates Court Rules 2001, rr.13.03A(c), 13.10(c), 16.05(2)(a)

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 66, 66(4), 415, 417, Pt.7

Ahmed v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 343
(The Applicant) v Minister for Immigration & Multicultural Affairs [2001] FCA 312
Applicant S1104 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 654
Applicant S1104 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 434
Applicant S1104 of 2003 v Minister for Immigration [2004] FMCA 1078
Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292
Commissioner of Police v Gordon [1981] 1 NSWLR 675
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
R v Moodie; Ex parte Mithen (1977) 17 ALR 219
Re Jonsson and Marine Council (1990) 11 AAR 439
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

SZGKR v Minister for Immigration [2005] FMCA 1316
Williams v Spautz (1992) 174 CLR 509
Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248

Applicant:

SZGMZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1521 of 2005

Judgment of:

Smith FM

Hearing dates:

8 August 2005, 10 October 2005

Delivered at:

Sydney

Delivered on:

10 October 2005

REPRESENTATION

Counsel for the Applicant:

No appearance by or on behalf of the applicant

Counsel for the Respondent:

Ms E Warner Knight

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the respondent’s costs on an indemnity basis in the sum of $4,000.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 3 May 2000 reference N99/28182 or for review of the decision of the delegate of the first respondent dated 26 March 1999 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1521 of 2005

SZGMZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application by the respondent Minister, who should be regarded as the sole respondent in the present matter, seeking that the substantive application be summarily dismissed under rule 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of process.
The bringing of the interlocutory application was foreshadowed at the first court date before a Registrar on 22 June 2005. The Registrar adjourned the matter for further direction before me on 8 August 2005, and gave directions about the filing of the motion. The motion was filed on 7 July 2005 and was made returnable before me on 8 August 2005. The motion is supported by an affidavit attaching numerous court documents showing a long history of litigation pursued by the applicant in relation to decision-making on his application for a protection visa which was lodged on 12 March 1999.
The applicant was present at the first court date, and it is clear he was on notice at that time of the Minister’s intention to seek summary dismissal of his application. It is also clear that he was on notice of the listing on 8 August 2005. This is because on 7 August 2005 he sent by facsimile to the Court a medical certificate saying that “He/She is not fit for work/school from 07/08/05 to 15/08/05 inclusive” due to “Unstable Asthma”. A covering message signed by the applicant requested an adjournment and said: “I also want to file and serve an amended application to disclose detailed grounds of my application”.
The applicant did not appear on 8 August 2005. Although his request for adjournment was unsatisfactory, I adjourned the Minister’s interlocutory application to today, and directed the Minister’s solicitors to send to the applicant a copy of my order with notice that if a further adjournment was sought on medical grounds then it must be supported by a medical report explaining unfitness to attend a short hearing in Court of one hour sitting down. I am satisfied that a copy of that order was duly served on the applicant, and that he has had now enjoyed many weeks to prepare his case and to appear today to justify the bringing of his present application.
The applicant did not appear today and there has been no communication to the Court explaining his absence. He has filed no amended application nor any other documents which would elucidate or justify his present application.
In those circumstances, and in view of the history of litigation which I shall recite below, I considered that it was appropriate to proceed with the Minister’s motion in the absence of the applicant. A copy of my judgment will be sent to the applicant and he will be entitled to apply to the Court under rule 16.05(2)(a) to have the orders I propose to make set aside. To succeed in such an application he will need to show a satisfactory explanation for his absence today and some merit in the application which he seeks to have reinstated.
The applicant’s history of litigation is as follows. He arrived in Australia in January 1999, and lodged an application for a protection visa on 12 March 1999. It was refused by a delegate on 26 March 1999. It is apparent that the applicant received actual notice of that decision soon thereafter, because on 27 April 1999 he applied for review of the decision under Pt.7 of the Migration Act 1958 (Cth) (“the Migration Act”) by the Refugee Review Tribunal (“the Tribunal”). The applicant submitted to the Tribunal material in support of his refugee claims and attended a hearing before the Tribunal.
In the Tribunal’s decision handed down on 3 May 2000, it said that it “finds the applicant is not a credible witness nor a witness of truth”. After examining his claims, it concluded:
The Tribunal is not satisfied that the applicant has suffered harm, let alone harm amounting to persecution, for a Convention reason in the past. It is also satisfied that the chance of such harm befalling the applicant in the reasonably foreseeable future is remote. It follows that the Tribunal is not satisfied that the applicant’s fear of persecution for a Convention reason is well‑founded.
The applicant filed an application for judicial review of the Tribunal’s decision on 30 May 2000. It came before Stone J for hearing on 8 March 2001. The applicant appeared and sought an adjournment to obtain legal advice and representation, but her Honour refused the application and dealt with the substantive application. Her Honour formed the view that the claims made by the applicant, which had been made in general and unparticularised terms, had not been made out. In her judgment published as (The Applicant) v Minister for Immigration & Multicultural Affairs [2001] FCA 312, she said:
[15]These grounds were not particularised in any way. I have reviewed the Tribunal’s reasons for decision in detail. Without addressing each of the claims made by the applicant, it is sufficient to say that in the absence of particulars, it is difficult to ascertain exactly what the claim is or might be. The problem faced by the applicant was that the Tribunal did not believe him. It did not believe that he had suffered attacks or that he was in danger of persecution within the meaning of the Convention.
[16]The Tribunal made these findings after a careful examination of the applicant’s evidence and the conflicting independent evidence. In my opinion, those findings were open to the Tribunal and I can discern neither error nor any evidence of bias in its reasons.
The applicant did not appeal from her Honour’s judgment. However, on 24 April 2001 he commenced new proceedings challenging the Tribunal’s decision, by joining a class action in the High Court. On directions of Gaudron J, the applicant filed his own application for an order nisi on 29 May 2003. However, he discontinued this proceeding on 22 January 2004, after it had been remitted to the Federal Court.
The applicant then commenced his third judicial review proceeding by filing an application in this Court invoking s.39B of the Judiciary Act 1903 (Cth) in relation to the decision of the Refugee Review Tribunal. The application followed a precedent which consists of a list of general heads of judicial review without any particulars suggesting any relevance to the particular decision of the Tribunal.
The application came before Barnes FM on 17 December 2004 at the request of the Minister, due to the applicant’s non‑compliance with a direction seeking to obtain particularity in the grounds relied upon. The applicant did not appear. Barnes FM dismissed the substantive application under Federal Magistrates Court Rule 13.03A(c), and published her reasons (see Applicant S1104 of 2003 v Minister for Immigration [2004] FMCA 1078).
The applicant then sought to appeal to the Federal Court of Australia. His application for leave to appeal came before Hely J on 6 April 2005. The applicant again failed to appear. His Honour dismissed the application, and gave his reasons (see Applicant S1104 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 434). He said that the material filed by the applicant did not reveal any arguable case of error on the part of the Federal Magistrate and that it was appropriate to dismiss the application due to the applicant’s failure to appear.
The applicant then filed an application in the Federal Court seeking leave to appeal from the decision of Hely J. His application came before Bennett J on 13 May 2005. The applicant appeared, and presented a medical certificate purporting to explain his absence before Hely J. When dismissing the application, Bennett J gave reasons which recited the applicant’s history of litigation (see Applicant S1104 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 654). She concluded:
[5]There has been no satisfactory explanation or reason advanced for setting aside the decision of Hely J, nor has there been anything said at all as to how the applicant would have an arguable case on appeal. I can see none. Accordingly, the notice of motion is dismissed.
The applicant has now commenced his fourth substantive judicial review application challenging the refusal of his protection visa application. The application uses Form 56 under the Federal Court Rules, and describes itself as:
Application to review the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) to refuse to grant the applicant a protection visa under the Administrative Decisions (Judicial Review) Act 1977.
The applicant was notified of the decision that is the subject of this application on: 26 March 1999. DIMIA File No. N99‑000991.
That decision is the decision of the delegate which the applicant previously sought merits review of by the Tribunal, and which was affirmed by the Tribunal in the decision upon which the applicant has previously focused his attention.
The application asserts grounds for orders by way of judicial review which contend that the delegate’s decision was made in breach of the rules of natural justice and without authority due to the failure of the delegate to give a notification of the decision to the applicant which complied with s.66 of the Migration Act in its description of the time for applying to the Tribunal. I infer that this is the argument invoked by the author of this document, due to a reference in the application to the decision of Gray J in Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 (“Chan”).
The relief sought by the application is:
The applicant claims –
1.An order and or declaration that the notification by the delegate of the Minister to refuse to grant a Protection visa is invalid and has no effect.
2.An order and or declaration that the decision by the delegate of the Minister has no effect.
3.An order to redirect this matter to DIMIA to notify the applicant according to law.
4.An order not to remove the applicant from Australia while a decision is pending.
5.Costs. And
6.Any further order that this Honourable Court may deem appropriate.
Although the first head of relief seeks a declaration as to the “notification by the delegate of the Minister”, I consider that the subject matter of the application is only the delegate’s substantive decision refusing the application for a protection visa, and the declaration as to notification of that decision is subordinate and preliminary to the declaration of invalidity sought in relation to that decision. I take this view because the application does not identify any other administrative action or decision about which a controversy with the Minister has developed. Nowhere in the application can I identify any separate controversy relating to the notification of the delegate’s decision, which the declaration concerning the notification would address and remedy. No affidavit has been filed by the applicant in support of his application which attempts to raise any such controversy.
In this respect, the present application is clearly different from Chan’s case, where an issue about notification arose independently from any issue as to the validity of the delegate’s decision, and did so in the course of a challenge to the lawfulness of the applicant’s immigration detention. The present application does not concern such a matter.
The present application is also different from the application addressed by me after a final hearing in SZGKR v Minister for Immigration [2005] FMCA 1316. In that case there appeared to have been some attempt, although I found it to have been ineffectual, to assert a relationship between an issue of notification and an insufficiently identified entitlement to a bridging visa. I do not consider that any such claim has been made in the present application.
Upon this analysis of the present application, I consider that the Minister’s arguments that the present application is an abuse of process should be accepted. There are four reasons for so characterising the application.
First, I consider that the applicant has no prospects of succeeding in an argument that a failure to comply with notification requirements arising under s.66 would invalidate the decision made by the delegate. Section 66(4) provides a clear legislative direction to the contrary (see also Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [41‑46]).
Secondly, the application seeking relief directed at the delegate’s decision would be refused in a final hearing, because such relief would be futile and serve no legal purpose. In my opinion, the structure of decision‑making under the Migration Act leaves the Minister and her delegates functus officio to make decisions by way of reconsideration or further exercise of the power to grant or refuse visas under s.65, in circumstances where merits review has been sought and obtained under Pt.7 in relation to a protection visa application. An intention that the primary power should be regarded as exhausted in such a case is shown by the strict and mandatory time limits for seeking review, and by the absence of any power of reconsideration by the primary decision‑maker. There is clear authority that the migration tribunals have power to review and reconsider legally invalid decisions as well as valid decisions (see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Ahmed v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 343). In this context, it should be inferred that the legislature did not intend the Minister to have power to re-open primary decision-making, even if the primary decision were legally invalid, once an application for review had been brought and determined under s.415 (c.f. Commissioner of Police v Gordon [1981] 1 NSWLR 675 at 689C, and Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 at 299G, and c.f. Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [5‑13] and [50‑60]). Such a construction of the legislative scheme would accord with long‑standing High Court authority which has been applied in relation to the Administrative Appeals Tribunal (see R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225, and the cases discussed in Re Jonsson and Marine Council (1990) 11 AAR 439). The conferral of a limited discretionary power on the Minister to re‑open the matter once merits review has been concluded confirms this construction (see s.417).
I therefore consider that the structure of decision‑making under the Migration Act indicates that there could be no duty on the Minister to further consider the applicant’s protection visa application once an application for merits review has been brought and lawfully determined, even if the applicant could establish that the primary decision was legally invalid. In this situation, the applicant’s present attempt to litigate the validity of the delegate’s decision would concern an issue of no legal significance. The Court would decline to give declaratory relief as to the validity of the delegate’s decision on the ground that this could not resolve any real controversy. The applicant would have no prospect of obtaining orders by way of mandamus or certiorari in the absence of a purpose in setting aside the delegate’s decision and of any duty to reconsider the matter. In my opinion, the futility of litigating whether the present delegate’s decision was made lawfully is sufficiently clear to allow me to predict with the requisite confidence that the present application would fail on this ground, and to characterise its continuance as an abuse of process.
My third reason for characterising the present application as an abuse of process is that it is also doomed to fail on a further discretionary ground. In my opinion, the applicant’s history of litigation by way of pursuing merits appeal of the delegate’s decision, and then bringing repeated attempts to challenge the validity of the Tribunal’s decision, would undoubtedly provide a separate discretionary reason for refusing relief in an application to challenge the delegate’s 1999 decision. The applicant’s history not only contains unwarranted delay in seeking relief in relation to the delegate’s decision, but also demonstrates disentitling conduct in his pursuit of inconsistent remedies. McHugh J has recently identified these considerations in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [80]:
The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome. (citations omitted)
On the material at present before me, I cannot conceive of any answer that the applicant might have to the application of these principles in response to his current challenge to the decision of the delegate.

The fourth reason why I have concluded that the present application is an abuse of process, is a factual inference which I draw from the chronology which I have recounted above and the lack of any apparent merits and proper purpose in the bringing of the present application.

I find myself compelled to draw the conclusion that the present application has been brought by the applicant for the predominant purpose of engaging in protracted litigation with the Minister for the collateral purpose of obtaining bridging visas whose entitlement depends upon the continuance of judicial review proceedings regardless of their merits. To use the Court’s processes for this purpose in the present circumstances is, in my opinion, an abuse of that process (c.f. Williams v Spautz (1992) 174 CLR 509 at 520‑522, 526‑529).
For all of the above reasons, I therefore consider that the present application is abuse of process and that it is appropriate to dismiss it summarily. I propose to make the orders sought by the Minister.
I also consider that 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’s registry that it should decline to receive further applications from the applicant concerning any aspect of 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 an adjudication about that decision‑making, then he will be allowed to commence another proceeding. However, he will have to show a controversy which properly requires the attention of the Court.

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 27 October 2005