SZGPS v Minister for Immigration
[2008] FMCA 360
•13 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGPS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 360 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – proceedings vexatious and an abuse of process as matter had been previously decided by the Court and all appeal rights exhausted – Court may prevent a party from bringing future proceedings without having been found to be a vexatious litigant – discretionary considerations relevant to the making of such an order. |
| Migration Act 1958, ss.474, 476 Federal Magistrates Act1999, s.15 Federal Magistrates Court Rules 2001, rr.1.03, 2.06, 13.10, 13.11 The Constitution, s.75 |
| SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581 Jones v Skyring (1992) 109 ALR 303 NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 975 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 |
| Applicant: | SZGPS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG453 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 13 March 2008 |
| Date of Last Submission: | 13 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Pursuant to r.13.10 of the Rules of Court, the application filed by the applicant on 26 February 2008 be dismissed.
The registry of the Court accept for filing no further application for review of the decision of the Refugee Review Tribunal signed on 25 May 2005 and handed down on 14 June 2005 (RRT reference number N05/50482), or review of the decision of the delegate of the first respondent dated 17 December 2004, or for review of any other administrative decision or action by any person or Tribunal relating to the application for a protection visa lodged by the applicant on 11 October 2004 without the prior leave of the Court.
The applicant pay the first respondent’s costs fixed in the amount of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 453 of 2008
| SZGPS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 25 May 2005 and handed down on 14 June 2005.
The applicant had claimed that he fears persecution in Bangladesh by reason of his homosexuality. The Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia owes protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
Proceedings in this Court
The matter is before the Court today on the first respondent’s application for summary dismissal pursuant to r.13.10 of the Rules of Court. The first respondent also seeks the following order:
That the registry of the Court be directed that no further application for review of the decision of the Refugee Review Tribunal signed on 25 May 2005 and handed down on 14 June 2005 (RRT reference number N05/50482), or for review of the decision of the delegate of the first respondent dated 17 December 2004, or for review of any other administrative decision or action by any person or Tribunal relating to the application for a protection visa lodged by the applicant on 11 October 2004 shall be accepted for filing without prior leave of the Court.
In the applicant’s application several grounds are pleaded in support of the allegation of jurisdictional error on the part of the Tribunal. The applicant also discloses prior proceedings in this Court, the Federal Court and the High Court.
The first respondent submits that the applicant has brought proceedings which have no reasonable prospect of success, which are frivolous and vexatious and which are also an abuse of the process of the Court (I note that that is the correct formulation of the rule, the application in a case appearing to cite a former version). The first respondent also submits that, in the circumstances, it is appropriate to prevent the applicant from bringing further proceedings based on the Tribunal’s decision.
Chronology
The first respondent’s application must be considered in light of the chronology of events disclosed by the material contained in and annexed to the affidavit of Katherine Hooper affirmed 4 March 2008. That chronology is as follows:
a)on 17 December 2004 the Minister’s delegate made the decision to decline the applicant’s application for a protection visa;
b)on 25 May 2005 the Tribunal signed its decision affirming the decision of the delegate. On 14 June 2005 it handed down that decision;
c)on 19 December 2006 the applicant’s application for judicial review of the Tribunal’s decision was dismissed by Turner FM;
d)on 30 April 2007 Rares J dismissed the applicant’s appeal from the decision of Turner FM;
e)on 7 February 2008 the High Court dismissed the applicant’s application for special leave to appeal from the decision of Rares J; and
f)on 26 February 2008 these proceedings were commenced.
Consideration of application for summary judgment
The decision of the Tribunal is a decision to which s.474 of the Migration Act 1958 (“Act”) applies. As a privative clause decision, it may not be challenged, appealed against, reviewed, quashed or called in question in a court. It is final and conclusive and is not subject to prohibition, mandamus, jurisdiction, declaration or certiorari in any court on any account.
However, the High Court has held that s.474 will not have the operation it purports to have if the decision of the Tribunal is affected by jurisdictional error. Jurisdictional error was the basis of the application which the applicant brought in this court on 29 June 2005 which was decided by Turner FM on 19 December 2006. That application to set aside the Tribunal’s decision was the foundation of the subsequent appeal process.
In these proceedings, the applicant again seeks review of the Tribunal’s decision and again the only basis upon which it can be set aside is that it is affected by jurisdictional error. In this case it is clear that the applicant’s action is certain to fail because his application for judicial review on the basis of jurisdictional error has already been determined by Turner FM and subject to an appeal to the Federal Court and an application for special leave to appeal to the High Court. The applicant has exhausted his appeal rights. The applicant’s claim that the Tribunal’s decision is affected by jurisdictional error has been finally decided. It cannot be decided again.
Moreover, to the extent that the applicant might have had other issues which could have been raised in the original proceedings before Turner FM, it is now too late to raise those matters as they should have been raised at that time. Consequently, the applicant is estopped from raising any claims which were or could have been raised in the previous proceedings or which were or could have been decided in the previous proceedings.
In my view, the proceedings have no reasonable prospects of success and are vexatious and an abuse of the process of the court and must be dismissed.
Consideration of application for order preventing future proceedings
With regard to the additional order sought by the Minister, it is an unusual situation which appears to be restricted to migration proceedings that an application is made to prevent access to the court system in circumstances where a person has not been determined to be a vexatious litigant.
It is undoubted that the Court has power over proceedings which are pending before it; its ability to manage those proceedings is an inherent part of the Court’s powers. Similarly, the Registrar’s power to reject for filing certain documents is specifically provided for in r.2.06. Under the Rules of Court, the only explicit power the Court has to restrain the filing of future proceedings is that which is found in r.13.11 which is this Court’s version of the power which is now routinely given to courts to prevent the bringing of proceedings by persons who have been found to be vexatious litigants.
The application today to prevent the applicant bringing further proceedings arising out of the refusal of his protection visa application does not fall into any one of these recognised categories. In reality, it seeks an order in the nature of a vexatious litigant declaration, without actually seeking such an order.
The first respondent has referred me to the decision of Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581. His Honour at 585-586 [21]-[29] considered whether a Federal Magistrate has power to make orders that no further application to review a decision of the Tribunal be accepted for filing except with the leave of the court.
At [22] and [24] his Honour refers to decisions which are distinguishable from the situation seen in this case. Similarly, at [26] his Honour referred to Jones v Skyring (1992) 109 ALR 303 which is a case dealing with the High Court’s powers in respect of a vexatious litigant. That case is also distinguishable from this case.
However, at [27] his Honour said an additional source of power may be found in s.15 of the Federal Magistrates Act1999 which provides that the Federal Magistrates Court has power in relation to matters in which it has jurisdiction to make orders of such kinds, including interlocutory orders, as the Federal Magistrates Court thinks appropriate, and issue or direct issue of writs of such kind as the Federal Magistrates Court thinks appropriate. His Honour concluded at [29] that by virtue of s.15 of the Federal Magistrates Act 1999, this Court does have power to make an order that no further application to review a decision of the Tribunal be accepted for filing except with the leave of the Court. I am bound by what his Honour said (NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 975), although I do note that his Honour was not referred to Commonwealth Trading Bank v Inglis (1974) 131 CLR 311.
As an adjunct to the power found in s.15 of the Federal Magistrates Act 1999, I note that pursuant to r.1.03 the Court may dispense with the rules in whole or in part, dispense with compliance with the rules in whole or in part or give directions or make orders inconsistent with the rules. Consequently, the fact that the rules provide specifically for how to deal with vexatious litigants does not in my view prevent the Court from making an order of the nature sought by the first respondent.
As Jacobson J said, the Court has power under s.15 to make orders in relation to matters which it has jurisdiction. The question is whether the Court has jurisdiction given that it has the same original jurisdiction in relation to decisions as the High Court has under s.75(5) of the Constitution: s.476(1) of the Act. In light of what Jacobson J held in SZDCJ’s case, I must with some hesitation conclude that it does, although I find it difficult to accept that someone shall be excluded from access to the Court without having been found to be a vexatious litigant.
The requirements for the determination of whether somebody is a vexatious litigant can be identified by reference to the rules and the body of authority which has built up in respect of similar provisions in other courts. The authorities provide no real guidance as to what matters might be considered when exercising the discretion which the Court would appear to have to prevent a person, who has not been found to be a vexatious litigant, from commencing proceedings in the Court.
I am of the view that if the Court is to exercise its power to prevent a person from bringing proceedings in the Court in circumstances where that person has not been declared to be a vexatious litigant, it should be exercised in circumstances where vexatious proceedings have already been brought on an issue already finally decided by the Court. Secondly, there should be reason to believe that future proceedings of a vexatious nature dealing with the same matter or matters will be brought.
Thirdly, if the criteria are satisfied I am of the view that any order that the Court might make should be limited to preventing proceedings which do no more than re-agitate a matter which has already been finally disposed of.
In this case, the criteria I have identified have been satisfied. I have found these proceedings to be vexatious, because the applicant seeks to re-agitate a matter which has already been finally determined. Secondly, in his submissions today the applicant made statements which indicated that he would continue to bring proceedings and it is apparent that he fails to appreciate that his matter has been finally determined and cannot be re-agitated in this Court.
Consequently, an order in the nature of the one sought by the first respondent will be made.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 25 March 2008
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