SZHLL v Minister for Immigration
[2007] FMCA 1295
•6 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHLL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1295 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – res judicata – proceedings frivolous, vexatious and an abuse of process – applicant not a vexatious litigant. |
| Migration Act 1958, ss.424A, 474 Federal Magistrates Court Rules 2001, rr.13.10, 13.11 |
| Bodruddaza v Minister for Immigration & Multicultural Affairs [2007] HCA 14 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZHLL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1985 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 06 August 2007 |
| Date of Last Submission: | 06 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 06 August 2007 |
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 be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $1,000.
The first respondent’s application for an order pursuant to r.13.11 is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1985 of 2007
| SZHLL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the applicant has filed an application dated 27 June 2007 in which he seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) which his application describes as being dated
5 September 2005. In his application to this Court the applicant states that he was notified of that decision on 29 September 2005. Annexure “A” to the affidavit affirmed by Therese Quinn on 10 July 2007 filed in these proceedings is a copy of the Tribunal decision.
In his application the applicant seeks judicial review of the Tribunal's decision on the bases that the Tribunal breached s.424A of the Migration Act1958 (“Act”) and that the decision falls within the ratio of the High Court decision in Bodruddaza v Minister for Immigration & Multicultural Affairs [2007] HCA 14.
Section 474 of the Act provides that the decision of the Tribunal is a privative clause decision and is final and conclusive, cannot be challenged in any Court and is not subject to prohibition, mandamus, injunction, declaration or certiorari. However the High Court has made it clear that s.474 will not have the operation it purports to have if the Tribunal's decision is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Consequently, the basis on which the applicant seeks review of the Tribunal's decision in these proceedings must be that the decision is affected by jurisdictional error, although those specific words are not actually used in the application. However, in an application dated 25 October 2005 and filed that day in this Court the applicant sought review of the same decision of the Tribunal on the basis that its decision was affected by jurisdictional error.
The litigation history following that application of 25 October 2005 is as follows:
a)on 2 February 2006 Scarlett FM dismissed the applicant's application for jurisdictional review. In his Honour's decision, which is part of annexure “F” to the affidavit of Ms Quinn his Honour said this:
It follows that I am satisfied that no jurisdictional error has been demonstrated. As there is no jurisdictional error, the decision is a privative clause decision, and the application must be dismissed.
b)the applicant appealed his Honour's decision to the Federal Court and on 24 May 2006 Collier J dismissed that appeal;
c)the applicant then took the matter to the High Court and sought special leave to appeal from the decision of Collier J. As revealed by annexure “J” to the affidavit of Ms Quinn, on 14 December 2006 the High Court dismissed that application for special leave to appeal.
In these proceedings the applicant seeks to re-agitate a claim for judicial review which has already been determined by three Courts. The matters which the applicant raises in his application on this occasion are either the same as that raised originally, namely the alleged breach of s.424A of the Act, or relate to the question of the timeliness of his application to this Court which is now not a matter which is pressed by the first respondent.
In any event the essence of the applicant's application and the only basis on which he could succeed is that the Tribunal's decision was affected by jurisdictional error. In the submissions today the applicant said that he seeks to appeal again from the decision of the Tribunal, notwithstanding the previous outcomes in the cases he has brought, because he claims a continuing fear of persecution in India. The reality of today's application is that the applicant does not accept that a final ruling has been made on his application. He will not accept an adverse outcome.
In the circumstances I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the application currently before me and, given the applicant has already taken his proceedings as far as the High Court, that these proceedings are frivolous and vexatious and, further, an abuse of the process of the Court.
Consequently on the first respondent's application, pursuant to r.13.10 of the Rules of Court the application will be dismissed.
RECORDED : NOT TRANSCRIBED
Before I deal with the question of costs I will deal with para.3 of the application in the case in which the first respondent seeks orders that the applicant be prohibited without the leave of the Court from lodging any further judicial review application in respect of the decision of the Refugee Review Tribunal signed on 5 September 2005. What the first respondent essentially seeks is that the applicant be declared a vexatious litigant and that orders be made pursuant to r.13.11 of the Rules of Court.
Before the Court can make such an order it is required to be satisfied that the person in question, namely the applicant in these proceedings, has habitually, persistently and without reasonable grounds, instituted other vexatious proceedings in the Court or any other Australian court. I am not satisfied that those criteria have been satisfied on this occasion. Although these proceedings are vexatious the applicant was fully within his rights to bring the earlier proceedings.
He was entitled to take his appeal as far as the High Court and the fact that one proceeding, namely this proceeding, has been found to be vexatious does not amount to conduct which is habitual and persistent. Consequently the application for an order pursuant to r.13.11 is refused.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Cameron FM.
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