SZHGF v Minister for Immigration
[2006] FMCA 1080
•26 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHGF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1080 |
| MIGRATION – Review of decision by delegate of first respondent – practice and procedure – prior proceedings in Federal Magistrates Court, Federal Court and High Court of Australia in relation to review of decision of Refugee Review Tribunal – application has no reasonable prospects of success – abuse of process – collateral purpose for application – application dismissed. |
| Federal Magistrates Court Rules 2001, rr.13.10; 13.10(a) Migration Act 1958 (Cth), ss.66(1); 66(2); 66(4) |
| SZGMZ v Minister for Immigration [2005] FMCA 1549 SZBXA v Minister for Immigration [2004] FMCA 96 |
| Applicant: | SZHGF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2816 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 26 July 2006 |
| Date of last submission: | 26 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms A. Nanson, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2816 of 2005
| SZHGF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By way of notice of motion filed on 22 November 2005, the first respondent seeks an interlocutory order that the application filed by the applicant in this Court on 4 October 2005 be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001, on the basis that the applicant's proceeding has no reasonable prospects of success, that the proceeding is frivolous or vexatious and an abuse of the process of the Court. The application seeks judicial review of a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 17 December 2001, although it names the Refugee Review Tribunal as the second respondent.
The first respondent read the affidavit of Angela Margaret Nanson, affirmed 8 November 2005 in support of that application. Ms Nanson’s affidavit annexes a copy of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 April 2003 which affirmed the Delegate's decision dated 17 December 2001.
On 5 May 2003, the applicant sought judicial review of the Tribunal's decision by way of an application filed in the Federal Magistrates Court. That application was the subject of a considered decision by Driver FM who dismissed the applicant's application on 17 June 2004 on the basis that the decision of the Tribunal was not affected by jurisdictional error.
I note that the applicant appeared at a hearing before the Tribunal and gave oral evidence. The applicant also appeared at the hearing before Driver FM. Following Driver FM's decision, the applicant filed a notice of appeal with the Federal Court of Australia in respect of that decision and on 6 October 2004 Sackville J dismissed the appeal on the basis that the Tribunal's decision was not affected by jurisdictional error. I note that the applicant also appeared before Sackville J.
On 4 August 2005, special leave was refused by the High Court of Australia in respect of an application for special leave to appeal filed by the applicant on 1 November 2004 on the basis that there are insufficient prospects of success in any appeal to the High Court from the decision of the Federal Court.
Following that procedural history, the applicant filed an application in this Court on 4 October 2005 seeking judicial review of the Delegate's decision. That application is the subject of the first respondent's motion before the Court today.
The first respondent submitted that the applicant's application has no real prospects of success. The applicant's application is in the following terms:
“Application to review “the notification” of a decision and “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 Administrative Decisions (Judicial Review) Act 1977 and Migration Act 1958.
The applicant was notified of the decision that is the subject of this application on: 17 December 2001, DIMIA File No. CLF 2001/045915
The applicant is aggrieved by the (decision or conduct or proposed conduct or failure) because –
1. The decision was not made according to law
2. The decision failed to observe the prescribed method of delivering and notifying a decision.
3. The delegate did not have the power to give that decision to the applicant.
4. The decision was infected by jurisdictional error and breach of procedural fairness.
The grounds of the application are –
1. A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified to the applicant and therefore, the procedures that were required by law to be observed in connection with the making of the decision were not observed.
2. The delegate who purported to make the decision did not have jurisdiction to give the decision. The Minister does not have a power to take this decision into effect. S66(1) and s66(2) of the Migration Act1958 (sic) was not observed.
3. The decision was infected by error of law. The decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
4. The application is late. However, the applicant refers to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292 and Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24.
5. This application is not vexatious nor and (sic) abuse of process. A delegate’s decision can be reviewed by the court under certain Circumstances. The Court has previously reviewed decisions be (sic) the delegate in the matters of:
Chan Ta Srey v Minister for Immigration & Multicultural Affairs (2003 FCA 1292
SZCTH v Minister for Immigration (No. 1) [2004] FMCA 211
NAMG v Minister for Immigration (No 1) [2003] FMCA 541
Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132
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.”
Ground 1 relates to an allegation of the breach of rules of natural justice because the applicant was not notified of the Delegate's decision as required by law.
Ground 2 appears to rely on the same ground by alleging that the Delegate failed to notify the applicant of the decision in accordance with ss.66(1) and 66(2) of the Migration Act 1958 (Cth) (“the Act”).
The short answer to both grounds 1 and 2 is that s.66(4) of the Act provides that:
“Failure to give notification of a decision does not affect the validity of the decision.”
Ground 3 contains no further particulars, and I can only assume also relates to the grounds referred to in 1 and 2 that the applicant was not notified of the Delegate's decision in accordance with ss.66(1) and 66(2) of the Act. In the circumstances, s.66(4) of the Act makes it clear that any such failure to provide notification does not render the decision invalid.
In the circumstances, grounds 1, 2 and 3 would have no prospects of success.
Grounds 4 and 5 appear to be submissions in answer to the first respondent's motion that the application is vexatious and an abuse of process. Those grounds appear to have been inserted in anticipation of the first respondent’s motion.
If the applicant was intending that grounds 1, 2 and 3 be confined to the Delegate's conduct in notifying the applicant of the decision, then plainly the application ought be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001.
The applicant was invited this morning to make whatever submissions he wished in support of his application and in response to the submissions made by Ms Nanson on behalf of the first respondent in respect of the first respondent's motion for summary dismissal. The applicant referred to submissions that he said had been filed in this Court. However, no document has been filed in this Court by the applicant or by anyone on behalf of the applicant, nor has any document been received by the first respondent from the applicant or anyone on behalf of the applicant since the filing of the application in this Court on 4 October 2005.
I pointed out to the applicant that, indeed, he attended two directions hearings and that in the most recent directions hearing on 22 November 2005 he was directed to file any material in support of his application and written submissions seven days prior to the hearing. The applicant said that he had given all his documents to his migration agent who he had understood would file documents on his behalf. However, the applicant was not able to identify the nature of those documents and there was nothing in the Court's file to suggest that the applicant was being assisted in the proceeding before this Court by a migration agent.
I asked the applicant whether there was anything that he did wish to say in support of his application today and he responded that whatever he had said before was all true in respect of his claim to have a well-founded fear of persecution for a Convention reason.
The first respondent referred the Court to SZGMZ v Minister for Immigration [2005] FMCA 1549 (“SZGMZ”), a decision in which Smith FM considered an application for review of a delegate's decision filed in circumstances similar to those relating to this applicant. Smith FM stated the following in paragraphs 23 and 24 of that decision:
“…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.”
In the circumstances, I accept that the operative decision in relation to the applicant's application for a protection visa is that of the Tribunal given on 9 April 2003. For those reasons the application ought be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 on the basis that the applicant’s proceeding has no, or no reasonable, prospects of success.
The first respondent also seeks an order that no further application for review of the decision of the Delegate of the Minister be accepted for filing without prior leave of this Court. It is my view that it would be appropriate only to make such an order if the Court was satisfied that the application before the Court was an abuse of process.
The first respondent referred the Court to the decision of Driver FM in SZBXA v Minister for Immigration [2004] FMCA 96 in support of her contention that the application before the Court is an abuse of the process of the Court. The first respondent’s outline of submissions states in paragraph 14:
“In considering an application for summary dismissal on the ground of abuse of process, in SZBXA v Minister for Immigration [2004] FMCA 96 at [9] Driver FM adopted for the purposes of his judgment, the following submission made on behalf of the respondent:
“An application for judicial review amounts to an abuse of process if it is filed for a collateral purpose, for example, for the purpose of extending the period of the applicant’s stay in Australia: NALE v Minister for Immigration [2003] FMCA 366 at [12]. Even if no ulterior motive is found to exist, the repeated bringing of similar applications can still be an abuse of process, if it would be unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute: Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256; Chu v Minister for Immigration (1997) 78 FCR 314 at 323-326. The Court should also consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same manner: Johnson v Gore Wood & Co [2002] 2 AC 1 per Lord Bingham at 22-34.”
In circumstances where the applicant has had the opportunity for a full consideration on the merits of his application for protection visa by the Refugee Review Tribunal and has thereafter exhausted all possible avenues of appeal of that decision, including the seeking of special leave in the High Court of Australia, and, in circumstances where I have found that the operative decision is that of the Tribunal, to my mind, for the applicant to file an application seeking judicial review of the Delegate's decision is an abuse of the Court's process and there can be no proper purpose in the bringing of the present application.
Having regard to the procedural history of the applicant's litigation in respect of the refusal of a protection visa; the fact that the application has no reasonable prospects of success; and the fact that there is no legitimate purpose in bringing the proceeding now before the Court, I conclude that the present litigation has been brought by the applicant for the predominant purpose of engaging in protracted litigation with the first respondent for the collateral purpose of obtaining a bridging visa whose entitlement depends upon the continuance of judicial review proceedings regardless of their merit.
In the words of Smith FM at paragraph 26 of SZGMZ:
“To use the Court processes for this purpose in the present circumstances is… an abuse of that process.”
For the reasons above, the proceeding for relief is frivolous and an abuse of process and is dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules2001.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
The first respondent seeks indemnity costs in an amount of $3800. The applicant opposes such an order on the basis that the amount sought is excessive.
RECORDED : NOT TRANSCRIBED
In fact the amount that is provided pursuant to Sch.1 of the costs of the Federal Magistrates Court Rules 2001 would provide for a costs order, on my calculation, of a sum of just over $3600. The indemnity costs sought by the applicant are not excessive in the circumstances, and for the reasons given by me in relation to the first respondent's contention that the application before this Court is an abuse of process, it is my view that indemnity costs ought be ordered.
ORDERS DELIVERED
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 7 August 2006
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