SZHDH v Minister for Immigration
[2005] FMCA 1756
•17 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDH v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1756 |
| 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 – Applicant a citizen of India claiming persecution for reason of political belief – where no hearing held – where Applicant was asked to provide additional information but did not do so – delay – where Applicant filed application for review after 18 months – natural justice – bias – procedural fairness. PRACTICE & PROCEDURE – Notice of Objection to Competency – privative clause decision – where application filed more than 28 days after the Applicant was notified of the decision – where decision handed down on 4 March 2004 but application for review filed at Court on 19 September 2005 – Notice of Motion – summary dismissal – abuse of process – res judicata – no reasonable cause of action. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424C, 425, 474, 477(1A)
SZDEK v Minister for Immigration [2004] FMCA 854
SZEDK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 577
Colgate Palmolive Pty Ltd v. Cussons Pty Ltd (1993) 46 FCR 225
| Applicant: | SZHDH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2621 of 2005 |
| Delivered on: | 17 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Mr Carter |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Leave granted to join Refugee Review Tribunal as a party to the proceedings.
That the application is not competent.
That the application is summarily dismissed as the claim for relief is:
(a)vexatious;
(b)an abuse of the process of the Court; and
(c)is a claim that does not disclose a reasonable cause of action.
No application by the Applicant for review of the decision of the Refugee Review Tribunal handed down on 4 March 2002 may be accepted for filing in any Registry of the Court without leave of the Court.
UNTIL FURTHER ORDER the Applicant is restrained from filing or attempting to file any application for review of the decision of the Refugee Review Tribunal handed down on 4 March 2002 without leave of the Court.
The Applicant is to pay the First Respondent’s costs on an indemnity basis in the sum of $4,000.00 together with Court costs in the sum of $288.00.
The Applicant is warned that if he seeks to institute any further proceedings in this Court seeking review of the said decision of the Refugee Review Tribunal without reasonable grounds he is liable to be declared a vexatious litigant.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2621 of 2005
| SZHDH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The substantive application before the Court is an application filed in this Court on 19th September 2005. The applicant asks this Court to review a decision of the Refugee Review Tribunal that was handed down on 4th March 2004. It can easily be seen that the application is out of time.
Section 477(1A) of the Migration Act provides that any application to the Federal Magistrates Court to review a privative clause decision must be lodged within 28 days of the applicant being notified of that decision. It is quite clear that many more than 28 days have elapsed between 4th March 2004 and 19th September 2005 when the Applicant filed his application. Of course that time limit would not apply if the decision of the Refugee Review Tribunal was not a privative clause decision. If there were a jurisdictional error then the decision would not attract the protection of s.474 of the Migration Act, as such it would not be a privative clause decision.
Nevertheless, the delay in bringing proceedings which could be characterised as unwarranted and unsatisfactorily explained delay can well be a disqualifying factor in obtaining discretionary relief such as orders in the nature of certiorari and mandamus.
The Applicant has taken steps to have the decision of the Tribunal reviewed. What indeed he did was to make an application for judicial review to the Federal Magistrates Court on 2nd April 2004. A Notice of Motion for Summary Dismissal of that application was filed on 24th August that year and Federal Magistrate Driver dismissed that application on 2nd November 2004. The citation for that decision is SZDEK v. Minister for Immigration [2004] FMCA 854.
As the application was summarily dismissed, it was necessary to obtain leave to appeal against that decision. The appeal was dismissed by Hely J in the Federal Court of Australia exercising delegated jurisdiction from the Full Court of the Federal Court on 19th April 2005. The citation for that decision is SZDEK v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 577.
The Applicant then applied for special leave to appeal to the High Court of Australia. He did that on 10th May 2005. On 8th September 2005 in a decision of Hayne and Callinan JJ on 8th September 2005 the application for special leave to appeal was dismissed. Those proceedings were S201 of 2005 HCA Trans 722.
What the Applicant then did is start again. He filed his application in this Court on 19th September 2005. He was allocated a separate pseudonym of SZHDH. The solicitors for the Respondent filed a Notice of Objection to Competency saying that the Court has no jurisdiction to review the decision made by the Refugee Review Tribunal on 11th February 2004. Sub-section 477(1A) of the Migration Act provides that an application must be made within 28 days of the notification of the tribunal decision.
The solicitors for the Respondent minister also brought a Notice of Motion asking that this application be dismissed under Part 13 Rule 13.10(c), (a) and (b) for three reasons; as an abuse of process, because the application discloses no reasonable cause of action, and the proceedings are vexatious. They seek orders for costs on an indemnity basis and they seek an order that no further application by the Applicant to review this decision of the Refugee Tribunal be accepted for filing except with the leave of the Court.
It is quite clear that applicants cannot continue to go around the circuit in the Federal Magistrates Court, to the Federal Court, to the High Court and back to the Federal Magistrates Court seeking to review the same decision of the Refugee Review Tribunal over and over again.
The principle of res judicata applies and I am satisfied that an Anshun estoppel would also apply. In my view, however, no fresh grounds have been raised. There are no exceptional circumstances. I am of the view that the application is an abuse of process. The application does not disclose any reasonable cause of action. I am not of the view that the proceedings are frivolous because the Applicant clearly wishes to stay in Australia. I am of the view, however, that they are vexatious. I am not, in making that finding, making a declaration that the Applicant is a vexatious litigant. Nevertheless, the aim is to bring about lengthy delays and enable him to obtain a lengthy extension of a stay in Australia. Whilst the Court has a heavy workload, the solicitors who regularly act for the Minister are aware of the fact that some applicants, and a small minority of applicants, do try to bring proceedings over and over again.
The lawyers for the Minister will, if they are doing their job properly, not only bring a Notice of Objection to Competency, as has been done in this case, but will bring a Notice of Motion seeking Summary Dismissal of the application on the basis that the application is an abuse of process of the Court. That has been done in this case and I notice that it has been done promptly.
It is not in the interests of the Court to allow abuse of the process of this Court to go unchecked. The Federal Magistrates Court is making serious efforts to reduce the time that it takes for applications to be heard and decided. Unmeritorious applications should be dealt with as promptly as possible so they do not take up the hearing time that should be allocated to applications that do have merit. There are applications who have review of decisions of the Refugee Review Tribunal or the Migration Review Tribunal where applicants have an arguable case and those applicants are entitled to have their cases heard within a reasonable period of time and decided within a reasonable period of Court time by a Court that does not have to wade through a morass of repeated unmeritorious applications brought for no other reason than to extend a bridging visa. People who continue to bring unmeritorious applications to the Court will find that the Court will deal with those applications earlier and earlier and earlier and the orders that will be made will be stronger and stronger and stronger.
The orders that I make in this case will reflect the view of the Court that these proceedings are unmeritorious. The only reason given by the Applicant to bring these proceedings was that he needed a lawyer. The answer to that assertion, of course, is yes, he did but he needed it back in April 2004, not now.
In my view it is appropriate to make an orders for costs and those costs should be assessed on an indemnity basis in view of the fact this application is an abuse of process of the Court. That is one of the reasons set out in Colgate Palmolive Pty Ltd v. Cussons Pty Ltd (1993) 46 FCR 225 as a basis for making an indemnity costs order.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 29 November 2005
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