SZHFL v Minister for Immigration
[2006] FMCA 295
•2 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHFL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 295 |
| MIGRATION – Protection visa application – judicial review of the Tribunal’s decision – 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
Federal Magistrates Court Rules 2001, r.13.10
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.66, 91X
Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 919
Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
Bal v Minister for Immigration & Multicultural Affairs [2001] FCA 1191
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FMCA 340
NALE v Minister for Immigration& Multicultural & Indigenous Affairs
[2003] FMCA 366
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 119
SZBJM v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404
S442 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1240
Walton v Gardiner (1993) 177 CLR 378
| Applicant: | SZHFL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG2754 of 2005 |
| Delivered on: | 2 March 2006 |
| Delivered at: | Sydney |
| Hearing date: | 2 March 2006 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the assistance of a Bengali interpreter.
| Advocate for the Respondents: | Mr K Sinnadurai |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The respondent’s application filed on 1 November 2005 is upheld.
The application for judicial review of the delegate’s decision filed on 28 September 2005 is dismissed pursuant to r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“Rules”) on the grounds that the proceedings are an abuse of process.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Mr L Hardy File No: N99/28471) made on 11 December 2001 and handed down on
9 January 2002, or the decision of the delegate of the Minister for Immigration (File No: N99/001095) handed down on 5 May 1999, is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2754 of 2005
| SZHFL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 1 November 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.An order that the application filed on 16 June 2005 be dismissed pursuant to r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“Rules”) on the ground that the proceedings are an abuse of process.
2.An order pursuant to r.13.11(3) of the Rules that:
(a)any proceeding instituted by the Applicant against the Respondent to review the decision of the delegate of the Minister dated 5 May 1999, may not be continued without the leave of the Court;
(b)the Applicant may not institute any proceeding against the Respondent to review the decision of the delegate of the Minister dated 5 May 1999, without the leave of the Court.
3.Such further orders as the Court sees.
For the purposes of this application, the respondent tendered and applied for the affidavit of Krishan Nathaniel Sinnadurai sworn on
31 October 2005 (“affidavit of Mr Sinnadurai”), 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 on 28 September 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The decision made on 11 December 2001 and handed down on 9 January 2002, affirming the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) made on 5 May 1999 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
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 “SZHFL”.
Background
The applicant, a national of Bangladesh, arrived in Australia on
20 February 1999. On 17 March 1999, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 5 May 1999, the delegate refused to grant a protection visa and on 24 May 1999, the applicant applied to the Tribunal for a review by The Tribunal of the delegate’s decision (affidavit of Mr Sinnadurai, page 2).
The applicant claims fear of persecution in Bangladesh for Coventry related reasons of “political opinions”. The applicant claims he is a former office holder in the Jatio party (“JP”). He claims he was involved with the JP since 1980 and that he was later appointed vice president of the party’s local branch. He claims that thugs supporting the Awami League (“AL”) attacked him on two occasions, once in 1990 and once in 1998. The applicant acknowledges that the AL formed government with the help of the JP in June 1996, a fact easily supported by much independent evidence. He claimed however that the workers of the JP did not support the coalition. It appears that from his own evidence, however, he was no ordinary worker. The fact that he did not resign from the position of Vice President appeared to be a sign that he did support the coalition. However, the applicant claims he instructed the JP members under him not to support the JP’s coalition partner, with the result that in 1998 he was attacked by AL thugs. The applicant summed up his claim stating that if he returned home, AL “goons” would kill him due to the AL’s control of the authorities. He cited the issue of “false charges” against him as evidence for the parties control of police. He provided no evidence to support his claim as to the existence of these charges, in spite of having stated as far back as March 1990 that he could do so. (affidavit of Mr Sinnadurai page 5).
Litigation history
Mr Sinnadurai, Solicitor for the respondent, prepared a convenient summary of the litigation history of the application and I adopt paragraphs 3-17:
3.On 11 December 2001 the Refugee Review Tribunal made a decision the subject of these proceedings.
4.On 1 February 2002 the Applicant applied for judicial review of the RRT’s decision.
5.On 11 April 2002 his Honour Justice Hely dismissed the application for an Order of Review.
6.On 30 April 2002 the Applicant appealed to the Full Federal Court of Australia against the judgment of his Honour Justice Hely.
7.On 6 November 2002 their Honours Justice Emmett, Justice Madgwick and Justice Conti dismissed the appeal.
8.On 2 December 2002 the Applicant filed an application for Special Leave to Appeal in the High Court of Australia.
9.On 21 July 2003 Registrar Grey certified that the Applicant failed to comply with the provisions of Order 69A Rule 10(9) of the High Court Rules and deemed the Application for Special Leave Abandoned.
10.On 31 July 2003 the Applicant filed an application for Special Leave to Appeal in the High Court of Australia.
11.On 3 February 2004 Registrar Grey certified that the Applicant failed to comply with the provisions of Order 69A Rule 6(1) of the High Court Rules and deemed the Application for Special Leave Abandoned.
12.On 2 March 2004 the Applicant filed an Ex parte Application for Special Leave to commence a Proceeding in the High Court of Australia.
13.On 31 March 2004 his Honour Justice Heydon dismissed the Ex parte Application for Special Leave.
14.On 11 May 2004 the Applicant applied for judicial review of the RRT’s decision.
15.On 27 September 2004 his Honour Magistrate Smith dismissed the Applicant’s application.
16.On 27 October 2004 the Applicant filed an Application for Extension of Time to file and serve a notice of appeal and supporting affidavit.
17.On 8 December 2004 his Honour Justice Lingren dismissed the applicant’s application for extension of time to file and serve a notice of appeal.
Respondent’s submissions
Mr Sinnadurai prepared written submissions in which I adopt paragraphs 1 to 7 for the purposes of this judgment:
1.In light of the prior proceedings commenced in the Federal Magistrates Court of Australia (on two occasions), the Federal Court of Australia (on three occasions) and the High Court of Australia (on three occasions) these proceedings are self evidently an abuse of process and warrant dismissal.
2.The Respondent submits that the Applicant's pursuit of merits review of the Delegate's Decision, and his subsequent and repeated pursuit of judicial review in relation to the validity of the RRT Decision, which affirmed the Delegate's Decision, is clearly "conduct of the party inconsistent with the application for relief".
3.The Respondent further submits that the application discloses no reasonable cause of action because, even if there were any jurisdictional error affecting the Delegate's Decision (which is not admitted), it was “cured” by the decision of the RRT. As a general principle, the Court should not hear a challenge to a primary decision where there is a de novo review decision, because the review decision “cured” the primary decision. Nor should a court 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 has been taken.
4.The structure of the 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 section 65 of the Act, in circumstances where a merits review had been sought and obtained under Part 7 of the Act in relation to a protection visa application. The futility of litigating the Delegate's Decision is such that the application is an abuse of process.
Breach of the Notification Procedures in respect of the Delegate's Decision - Breach of section 66 of the Migration Act
5.To the extent the Applicant asserts that there was no notification of the Delegate's Decision:
(a)section 66(4) of the Migration Act ("Act") provides that failure to give notification of a decision does not affect the validity of the decision.
(b)it is not contested and it is patently clear that the Applicant did in fact apply within time to the RRT.
Accordingly, there is not merit to the Applicant's ground of review asserting that the failure to notify him of the Delegate's Decision invalidated that decision.
Unwarrantable Delay
6.The unwarrantable and unexplained delay (of approximately six and a half years) in raising the present challenge also constitutes justification for dismissal of the application in the exercise of the Court's discretion without determining whether there has been any jurisdictional error.
7.There is plainly unwarranted delay in this case justifying the withholding of relief. A delay of more than a year (as here) should ordinarily lead to relief being refused in the exercise of the court’s discretion.
Applicant’s submissions
On 15 February 2006, the applicant filed a document entitled “Outline of Submissions” with an attachment called “Written Legal Submissions”. The Outline of Submissions is a restatement of the substantial issues contained in the applicant’s claim, while the Written Legal Submissions is a further attempt to restate the applicant’s claim. It is broken up into sub-headings and a request for order that may be an attempt to file an amended application. However, the contents is more focussed on the merits review and does not raise grounds of jurisdictional error.
Reasons
This is an interlocutory application by the Minister filed on
1 December 2005. The Minister seeks the summary dismissal of the application pursuant to r.13.10 of the Rules on the basis that the proceedings are frivolous or vexatious, or are otherwise 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 that it is 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 [2005] FCAFC 119 at [61].
The bringing of the interlocutory application was foreshadowed at the first Court date hearing before me on 1 November 2005. The Minister’s application was filed in Court during that first court date hearing and was made returnable before me on 2 March 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 17 March 1999. 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. At the time of the first court date in these current proceedings, the applicant was asked whether he wished to have the matter transferred to the docket of another Federal Magistrate. I had personally made a decision in his previous application for judicial review of the Tribunal decision, which I dismissed on 6 September 2005.When the applicant appeared before me at the interlocutory hearing, I again indicated that he could have the matter transferred to be heard by a different Magistrate if he wished. I did indicate to the applicant that the matter listed by me on 6 September 2005 is a different issue from that before the Court in the present proceedings, but would be subject to a similar approach in light of the substantial previous litigation history. The applicant declined the offer of transfer and indicated that he wished me to hear the matter.
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 Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 at [18] to [19], Wilcox J found that re-litigating the same application can be an abuse of process. His Honour observed that:
“If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner …”
Similarly, in SZBJM v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 at [29] to [30], Magdwick J said:
“Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigation his way, with legal advice, to a Full Court of this Court, and thereafter, it seems, without such advice to the High Court, it is high time that all this litigation was put to an end … The proceedings, being groundless on their face, are an abuse of process.”
(See also S442 of 2002 v Minister forImmigration & Multicultural & Indigenous Affairs [2003] FCA 1240 at [29]; Applicant A87 of 2003 v Minister forImmigration & Multicultural & Indigenous Affairs [2004] FCA 919 at [40]; Bal v Minister forImmigration & Multicultural Affairs [2001] FCA 1191 at [24] to [27], where the relationship between Anshun estoppel and abuse of process is briefly discussed.
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 [2003] FMCA 366 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 [2003] FMCA 340 at [18], where 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 first 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 first respondent’s costs and disbursements of and incidental to the application on an indemnity basis in the amount of $3,000.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 March 2006
0
8
0