SZHKE v Minister for Immigration
[2005] FMCA 1913
•30 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKE v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1913 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of a delegate of the Minister not to grant a protection visa – primary decision – where applicant did not disclose that an application for review had previously been heard and determined by the Refugee Review Tribunal. PRACTICE & PROCEDURE – Abuse of process – where applicant did not disclose previous application to the Federal Court – where Full Court of the Federal Court dismissed an appeal against the decision of the Federal Court – where application for special leave to appeal to the High Court dismissed – where applicant did not disclose previous application to the Federal Magistrates Court for review of the same decision – where appeal against Federal Magistrate’s decision dismissed by the Federal Court – where applicant again sought special leave to appeal to the High Court – where further application for special leave dismissed – whether aggravated abuse of process – whether applicant is a vexatious litigant – whether applicant has “habitually, persistently and without reasonable grounds’ instituted other vexatious proceedings – costs payable on indemnity basis – waiver of filing fee revoked – applicant who brings vexatious proceedings or proceedings that are an abuse of the court’s process not entitled to relief from payment of filing fee. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 476 Federal Magistrates Act 199 (Cth), ss.14, 15 Federal Magistrates Court Rules 2001, rr.13.09, 13.10, 13.11 |
| Applicant NARO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1465 Applicant NARO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 101 SZEFA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 278 SZEFA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 602 SZEFA v Minister for Immigration & Multicultural & Indigenous Affairs S267/2005 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed |
| Applicant: | SZHKE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3046 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 November 2005 |
| Date of Last Submission: | 30 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2005 |
REPRESENTATION
| The Applicant: | No appearance |
| Solicitors for the Respondent: | Ms Palmer Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as Second Respondent to the application.
That the interlocutory application under Rule 13.09 filed by the First Respondent on 21 November 2005 is granted.
That the application for judicial review filed by the Applicant on
20 October 2005 is dismissed under the provision of Rule 13.10(b) as vexatious and under the provisions of Rule 13.10(c) as an abuse of the process of the Court.
That no further application by the Applicant to review the decision of a delegate of the Respondent Minister made on 17 January 2000 or the decision of the Refugee Review Tribunal made on 21 June 2002 and handed down on 16 July 2002 may be accepted for filing without leave of the Court.
That under provisions of Rule 13.11 any proceeding instituted by the Applicant against the Respondent Minister or the Refugee Review Tribunal may not be continued without the leave of the Court.
That under the provisions of Rule 13.11 the Applicant may not institute any proceeding against the Respondent Minister or the Refugee Review Tribunal without leave of the Court.
The Applicant is declared to be a vexatious litigant.
That the Applicant is to pay the first Respondent’s costs on an indemnity basis in the sum of $3,500.00 with Court costs of $288.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3046 of 2005
| SZHKE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an interlocutory application filed on 21st November 2005. It is an application to dismiss the substantive application brought by the applicant on the ground that the application is an abuse of process, or in the alternative, that the applicant is barred by res judicata and/or is estopped from bringing these proceedings.
The applicant has not attended Court today. She was present in Court in person with a Bengali interpreter on the last occasion the matter was before me, which was 21st November 2005. On that date the respondent's solicitor, Ms Palmer, filed in Court the interlocutory application with which I am dealing today. I adjourned the matter to today for hearing even though the applicant sought a lengthier adjournment to deal with the interlocutory application.
The matter was listed for hearing at 12 noon. Due to the business of the Court I was not able to reach the matter at 12 noon and indeed it was not until after 12.45 that I was able to mention the matter for the first time. The matter was called and I note that there is no appearance by the applicant at 12.53 pm, 53 minutes after the matter was listed for hearing. The respondent’s solicitor has appeared and the interpreter whose presence was required managed to appear on time. The applicant does not appear.
In my view, given the nature of the application with which I am required to deal today, it is appropriate to deal with this matter on an ex parte basis.
The applicant filed her application on 20th October 2005. It is an application to review what is said to be the notification of a decision and the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant the applicant a protection visa. The applicant said that she was notified of the decision on 15th January 2000. She claims that the decision was not made according to law, that the decision failed to observe the prescribed method of delivering and notifying a decision, that the delegate did not have the power to give that decision to the applicant, the decision was infected by jurisdictional error and breach of procedural fairness.
On page 2 she gives what are said to be grounds but are more in the nature of particulars. There are five of them and I will summarise them briefly. First, a breach of the rules of natural justice occurred.
The decision was not notified to the applicant. Second, the delegate who purported to make the decision did not have jurisdiction to give the jurisdiction. Third, that the decision was infected by error of law. Fourth, that the application is late, that the applicant refers to the decisions of Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 and Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24. Fifth, the applicant claims a delegate's decision to be reviewed by the Court under certain circumstances and cite a number of cases.
What the applicant has not disclosed in her application is that the proceedings have already been reviewed. Not only have they been reviewed by the Refugee Review Tribunal, but the proceedings have already been subject to judicial review in a number of Courts having federal jurisdiction. The respondent minister seeks to rely on the affidavit sworn on 18th November 2005 by Ellie Jane Palmer, solicitor.
The brief facts are notwithstanding the fact that the applicant seeks a review of the delegate's decision, that decision was reviewed by the Refugee Review Tribunal on 16th July 2002. The Tribunal made its decision on 21st June and handed that decision down on 16th July.
The decision of the Tribunal was to affirm the decision of the delegate not to grant the applicant a protection visa.
On 12th August 2002 the applicant made application to the Federal Court for review of the decision of the Refugee Review Tribunal.
On 26th November of that year his Honour Madgwick J dismissed that application. On 13th December 2002 the applicant appealed from the judgment of the Honourable Madgwick J to the Full Court of the Federal Court.
At this stage the applicant was going under the pseudonym given to her by the Federal Court of NARO of 2002. The Full Court dismissed the appeal with costs. The citation for the decision of Madgwick J in the Federal Court is [2002] FCA 1465 and the citation for the decision of the Full Court of the Federal Court is [2003] FCAFC 101.
The applicant then applied to the High Court of Australia for special leave to appeal on 16th June 2003. However, on 22nd December 2003 the application for special leave to appeal was deemed to be abandoned pursuant to order 69A of r.13 of the High Court Rules. This was due to the fact that the applicant had failed to comply with provisions of order 69A r.10 sub-r.(9). What the applicant then did is lodge a further application for review of the Refugee Review Tribunal's decision. This time she applied to the Federal Magistrates Court. That application was filed on 8th August 2004. The applicant was given the pseudonym SZEFA and the application came before my learned friend colleague Mowbray FM on 9 February 2005.
The applicant did not appear. His Honour summarily dismissed the application as incompetent and made an order for costs. The citation to this decision is [2005] FMCA 278. Undeterred by this rebuff, on
2nd March 2005 the applicant appealed to the Full Court of the Federal Court of Australia. On 10th May 2005 Conti J hearing the appeal as a single Judge with a delegation of the Full Court of the Federal Court ordered that the application for an extension of time to apply for leave to appeal be dismissed. His Honour went on to dismiss the application for leave to appeal and made an order for costs.
The applicant then applied for special leave to appeal to the High Court of Australia on 6th June 2005. That application was dealt with by their Honours Hayne and Callinan JJ on 8th September 2005 where their Honours dismissed the application for special leave to appeal. On 20th October 2005 the applicant again applied to the Federal Magistrates Court, this time applying for judicial review of the delegate's decision. On this occasion she was allocated the pseudonym SZHKE. Fortunately, the solicitors for the respondent were able to identify the applicant as having previously sought judicial review of the delegate's decision and the Refugee Review Tribunal's decision and filed the present application.
It is quite clearly an abuse of process. As I said in SZDCR & Anor v Minister for Immigration [2005] FMCA 1776:
It is an abuse because the decision of the delegate has already been reviewed by the Refugee Review Tribunal.
In this case before me, as in SZDCR, the applicant did not mention in her application any of the proceedings before the Federal Court, the High Court or this Court. The application is entirely silent on that point and the inference that I can draw is that either the applicant was extremely negligent or did not believe that earlier proceedings were relevant or attempted to conceal the fact that proceedings previously had been before a variety of Courts. In fact the application to review the Refugee Review Tribunal's decision has been around the circle of Courts twice.
In my view, the decision of the delegate, since the matter has been reviewed by the Refugee Review Tribunal, has become legally irrelevant and in that view I agree with the conclusion to similar effect by my learned colleague Smith FM in SZGKR & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1316. This is not a decision that can be reviewed by a Court. It is a primary decision under sub-s.476(6) because it is a privative clause decision; that is, not only reviewable but has been reviewed under Part 7 of the Act. It has been reviewed under Part 7 because it was reviewed by the Refugee Review Tribunal.
The application was dismissed by Madgwick J on a final hearing as long ago as 26th November 2002. His Honour said at para.10:
For the reasons articulated by counsel for the Minister in her written submissions, there is no substance whatsoever in any of these grounds and if there were, s.474 of the Migration Act 1958 (Cth) would not be overcome.
In other words, his Honour found that the decision was a privative clause decision and therefore it is not reviewable by the Federal Magistrates Court or by the Federal Court. The application must be dismissed.
I note, with respect, that in his judgment at para.1 Madgwick J said:
This is another hopeless case.
In my view, the application remains hopeless, not only for the reasons that I have given, but because the fact that the grounds given by the applicant appear to me to be quite unmeritorious. There is no evidence of any breach of the rules of natural justice. The claim that the decision was not notified to the applicant can hardly stand when it was clear that the applicant was able to apply to the Refugee Review Tribunal for review of that decision within time. Further, there is no evidence that the delegate who made the decision did not have jurisdiction to do so. The claim that sub-s.66(1) and 66(2) were not complied with does not affect the validity of the decision and
sub-s.66(4) provides that failure to give notification of a decision does not affect the validity of the decision.
There is no evidence of any error of law on the part of the delegate. There is nothing to suggest that the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was made. A delegate's decision may not be reviewed by a Court when it has already been reviewed by the Refugee Review Tribunal under Part 7 of the Migration Act. The decision of course has been reviewed under Part 7 of the Migration Act and the cases quoted by the applicant in her application, which is identical in its grounds to the application I dealt with in SZDCR & Anor v Minister, being Chan Ta Srey v Minister for Immigration, SZCTH v Minister for Immigration No. 1 [2004] FMCA 2001, NANG v Minister for Immigration No. 1 [2003] FMCA 541, and Minister for Immigration and Multicultural and Indigenous Affairs v Alam [2005] FCAFC 132. Those cases can all be distinguished on the grounds that they were cases where there had not been a review by the Refugee Review Tribunal. In this case there clearly has been.
I am satisfied the sole purpose of bringing this application is to secure the extension of a bridging visa. I note that the application in SZDCR v Minister for Immigration was coincidentally dismissed by their Honours Hayne and Callinan JJ on the same date as this one and 28 other applications of a similar nature on 8th September this year. The application is an abuse of the process of the Court and I intend to dismiss it. Quite clearly, the doctrine of res judicata applies because the subject matter has already been heard and ruled upon.
I am satisfied that this application is a vexatious application as described in r.13.11. I am satisfied that the applicant has habitually, persistently and without reasonable grounds instituted other vexatious proceedings. When one considers that there have been two applications to the Federal Magistrates Court, one application to the Federal Court in its original jurisdiction, two appeals to the Full Court of the Federal Court and two applications for leave to appeal to the High Court of Australia, all in respect of the same decision which had already been reviewed by the Refugee Review Tribunal, it is clear that the application is no more than a sham. It is not only a sham, it is a scam.
Under s.15 of the Federal Magistrates Act 1999 the Court has power, amongst other things, to make interlocutory orders including interlocutory orders to deal with the misuse of the Court's own process. I propose to do just that because this application is no more than a further attempt to obtain a continuation of a bridging visa. It is taking up the time of the Court and has already taken up the time of seven Judges of the Federal Court, two Judges of the High Court of Australia and two Federal Magistrates and in doing so it deprives applicants who may have a good case from obtaining an early hearing date.
Quite clearly, this applicant who has brought a proceeding which I consider to be a vexatious proceeding should be prevented from continuing in this path for an obvious ulterior motive.
It is also a matter where I consider it is appropriate for there to be an order for costs and indeed I propose to order costs on an indemnity basis in the sum put to me by the solicitor for the respondent.
The decision of the Federal Court in Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 makes it quite clear that where an application is an abuse of process it is appropriate for costs to be awarded on an indemnity basis.
There are two other issues which I am going to deal with. One of them is that in view of the significant number of proceedings that this applicant has brought in respect of the one decision, she has reached the stage where I consider she should be declared a vexatious litigant. The other issue that arises from a perusal from the Court's file is the applicant in bringing this vexatious application made an application to a Registrar of the Court not to have to pay the Court's filing fee because she claims that she is in financial hardship. The application in fact was successful and the filing fee was waived.
In my view, where an applicant brings a proceeding that is an abuse of the Court's process it is not appropriate for the applicant to have the benefit of being excused the filing fee. What I propose to do is revoke the waiver of the filing fee and require her to pay the sum of $288.00 by way of Court costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 13 December 2005
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