SZHLV v Minister for Immigration
[2008] FMCA 134
•1 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHLV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 134 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of a delegate of the Minister not to grant a protection visa – primary decision – where delegate’s decision has been reviewed by the Refugee Review Tribunal – where application for judicial review of the RRT decision has previously been dismissed by the Federal Magistrates Court – where appeal has previously been dismissed by Federal Court – where application for special leave to appeal has previously been dismissed by the High Court. PRACTICE & PROCEDURE – Tribunal functus officio – claim not arguable – proceedings vexatious and an abuse of process - costs payable on indemnity basis. |
| Federal Magistrates Court Rules 2001, rr.13.03A, 21.03 |
| Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 SZIKW v Minister for Immigration & Anor [2007] FMCA 2121 SZASY v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FMCA 440 SZASY v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCA 1074 SZASY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 346 SZASY v Minister for Immigration & Anor [2005] FMCA 1288 SZHLV v Minister for Immigration & Anor [2006] FMCA 1619 SZHLV v Minister for Immigration & Multicultural Affairs [2006] FCA 1756 SZHLV v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 566 Colgate Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 |
| Applicant: | SZHLV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | PEG 222 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 February 2008 |
| Date of last submission: | 1 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2008 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Ms Warner-Knight |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the Applicant is changed to SZHLV.
The Application is dismissed as vexatious and an abuse of process.
The Applicant is to pay the First Respondent's costs on an indemnity basis fixed in the sum of $4,500.00.
No application by this Applicant for review of any decision of the RRT is to be accepted for filing without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PEG 222 of 2007
| SZHLV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant in this case has filed an application seeking review of a decision of the Refugee Review Tribunal made on 29th October 2007. He claims, in his application which was filed in Perth on 8th November 2007, that:
a)The Tribunal denied him natural justice, in that the Tribunal was biased, or that there was an apprehension of bias.
b)That the Tribunal made an error of law and failed to exercise the proper procedure.
c)The Tribunal denied him natural justice and procedural fairness under sections 416, 424A and 425 of the Migration Act.
d)That he was deprived of natural justice and procedural fairness.
The particulars of his claims are that he was not offered a hearing, or given any opportunity for his comment regarding his new appeal to the Tribunal. He claims that the Tribunal exceeded its jurisdiction, failed to have a fresh look at his protection visa claim, and was biased by the delegate's decision. He seeks orders in the nature of certiorari, prohibition and mandamus. The Respondent Minister, however, has filed an application to strike out his substantive application as an abuse of process.
The substance of the application to the Refugee Review Tribunal was that it was a fresh application to review a decision of a delegate of the Minister to refuse to grant the Applicant protection visa on 10th May 2001, notified to the Applicant by letter dated that same date. The Tribunal found that it did not have jurisdiction because it had already discharged its functions under the Act.
The Applicant commenced these proceedings by filing an application in Perth. This appears to be a curious choice of venue, as the Tribunal proceedings were heard in Sydney, and the Applicant gives his address for service as a suburb of Sydney.
The choice of Perth in the circumstances seems to have no relevance to the proceedings, and it would be hard to find a Registry of Federal Magistrates Court further removed from the Applicant's place of residence and the venue of the Tribunal decision than Perth.
The application was originally listed for Interlocutory Hearing before a Federal Magistrate in Perth, on today's date. When it became clear that the Applicant was going to be in Sydney, and sought to have the matter dealt with by telephone, a decision was made that a more appropriate venue should be chosen, and the matter was listed before me in Sydney, rather than in Perth.
Notwithstanding the considerably more convenient venue as far as the Applicant's home address is concerned, the Applicant has not attended Court today. The matter was listed for 10:00am and the Applicant did not appear. I stood the matter down, and in the intervening period no message was received from the Applicant, or from anyone on the Applicant's behalf, indicating that he was somehow delayed, hindered or prevented from attending court due to illness, injury or any other unforeseen circumstance.
The matter was called again at 10:45am, and the Applicant did not answer the call. The solicitor for the Minister, Ms Warner‑Knight has asked the Court to proceed with the hearing generally under the provisions of Rule13.03A(e). In the circumstances, I consider it appropriate to do just that.
Rule 13.03A(e) – Proceed with the Hearing generally
I have had the opportunity of reading an affidavit of Arron Niall Gerrard, sworn on 17th December 2007, setting out the Applicant's litigation history, and I have also read a very useful outline of submissions prepared by, apparently, a Mr Peter Corbould, solicitor, and filed on 29th January 2008.
A useful summary of the litigation history is set out in the outline of submissions, and I propose to rely extensively upon it.
Applicant’s Litigation History
The Applicant applied for Protection (Class XA) visa on 3rd May 2001. The application was refused by a delegate of the Minister on 10th May 2001, and the Applicant sought a review by the Refugee Review Tribunal. On 28th May 2003, the Tribunal affirmed the decision not to grant the Applicant a protection Visa.
The Applicant then filed an Application for judicial review, and the matter came before Barnes FM in the Federal Magistrates Court, who dismissed the application on 22nd June 2004. The Applicant appealed and on 12th August 2004 that appeal was dismissed by Wilcox J.
An application for special leave to appeal the decision of the Federal Court to the High Court of Australia was refused by the High Court on 26th May 2005. The Applicant then filed a second application for review of the Tribunal's decision.
On 26th August 2005, Smith FM dismissed the application, and directed that no further application for review of the decision of the Tribunal handed down on 28th May 2003, or for review of the decision of the delegate of the Minister, dated 10th May 2001, or for review of any notification of those decisions should be accepted for filing without prior leave of the Court.
On 7th October 2005, Bennett J refused to grant leave to appeal against the decision of Smith FM. The Applicant again filed an application for review in the Federal Magistrates Court. On 25th October 2006, that application came before me, and I dismissed the application as an abuse of process.
On 14th December 2006, Moore J dismissed an appeal from my decision. On 3rd October 2007, the High Court of Australia refused to grant special leave to appeal against the decision of Moore J.
The Applicant then filed with the Refugee Review Tribunal a further application to review the decision of the delegate of the Minister of 10th May 2001. The Tribunal found, on 29th October 2007, that it had no jurisdiction to review the delegate's decision, and the application before this Court seeks judicial review of that decision.
The Minister contends that the application should be dismissed because the Applicant has no reasonable prospect of successfully prosecuting the proceeding, and that the proceeds are frivolous and vexatious, and that the proceedings are an abuse of process.
It is argued that the Applicant's application was certain to fail because the Tribunal was correct to conclude that it was functus officio and did not have jurisdiction to conduct a second review of the delegate's decision. (See Jayasinghe v Minister for Immigration & Ethnic Affairs[1] and SZASP v Minister for Immigration & Citizenship[2]).
[1] (1997) 76 FCR 301
[2] [2007] FCA 771
The Minister also contends that these proceedings fall within Rule 13.10 of the rules of the Court. I am referred to a decision of the Cameron FM in similar proceedings, being SZIKW v Minister for Immigration & Anor[3]. In that matter his Honour stated at [12]:
“This is more than a case where an applicant has failed to demonstrate an argument which justifies the respondent having to go into evidence. This is a case where the applicants have already enjoyed the benefit of a Tribunal review and the judicial review and appeal processes which were available consequent upon a Tribunal decision. Not being satisfied either with the Tribunal’s decision or, apparently, the outcomes of the subsequent judicial review and appeal process, the applicants have brought further proceedings against the Minister when their claims to be entitled to protection visas have already been finally determined. It is vexatious of a litigant to force or to require another party to come to court when the matters in issue have already been finally determined. It is also an abuse of the process of the Court.”
[3] [2007] FMCA 2121
In my view, with respect, the passage which I have quoted from his Honour's decision is a clear statement of the law, and I propose to follow his Honour's decision in SZIKW.
Applicant’s Pseudonym under s.91X
First Application for Review
The Applicant originally applied to the Court and was granted and was given a pseudonym by the Registry in order to comply with the requirements of section 91X of the Migration Act. The original pseudonym was SZASY, and the decision of Barnes FM is SZASY v Minister for Immigration, Multicultural & Indigenous Affairs[4]. The citation of the appeal decision by Wilcox J is SZASY v Minister for Immigration, Multicultural & Indigenous Affairs[5]. The decision of the High Court of Australia is SZASY v Minister for Immigration & Multicultural & Indigenous Affairs[6].
[4] [2004] FMCA 440
[5] [2004] FCA 1074
[6] [2005] HCATrans 346
Second Application for Review
When the Applicant lodged his second application, he was given the same pseudonym. The decision of Smith FM is SZASY v Minister for Immigration & Anor[7].
[7] [2005] FMCA 1288
Third Application for Review
When the Applicant lodged his third application, due to perhaps some oversight, he was given a fresh pseudonym of SZHLV. My decision dismissing his application on 25th October 2006, bears the citation SZHLV v Minister for Immigration & Anor[8]. The decision of Moore J has the citation SZHLV v Minister for Immigration & Multicultural Affairs[9]; and the decision of the High Court refusing to grant special leave to appeal is SZHLV v Minister for Immigration & Multicultural Affairs[10].
[8] [2006] FMCA 1619
[9] [2006] FCA 1756
[10][2007] HCA Trans 566
Fourth Application for Review
When the Applicant filed his application at the Registry in Perth, the proceedings were originally listed in his own name. However, a check at the Registry discovered the earlier proceedings, and the proceedings were originally, but mistakenly, described as SZHL and the Applicant was originally mistakenly given the pseudonym SZHL. The final letter V was omitted, and that may or may not be explained by the fact that pseudonyms in Western Australia are, like pseudonyms in the Federal Court, restricted to four letters, unlike the five letter pseudonyms that are found in Sydney and Melbourne.
In any event, I propose to make a formal order directing that the title of the Applicant is changed to SZHLV.
Conclusion
I am, of course, more than satisfied that these proceedings are vexatious and an abuse of process. The Court is well and truly aware of the practice of some litigants to attempt to prolong their stay in Australia by lodging fresh applications for review of the same decision of the Refugee Review Tribunal.
The Court is also aware of the practice of lodging a fresh application with the Refugee Review Tribunal which is out of time in respect of a decision which the Refugee Review Tribunal has already reviewed.
Upon the Tribunal dismissing the application by finding that it has no jurisdiction, the Applicant then commenced proceedings in this Court for review of the fresh decision of the Refugee Review Tribunal, which is clearly an attempt to get around orders by the Court that no further application for review of the original Tribunal decision, or notification of that decision, or notification of the delegate's decision, be accepted for filing without leave of the Court.
It is easy to speculate why the Applicant, who appears always to have lived in a suburb of Sydney and has had his applications dismissed on three occasions by Federal Magistrates based in Sydney, would choose otherwise inexplicably to commence proceedings in Perth.
The lawyers who act for the Minister need to be aware, and they usually seem to be aware, of the need to bring these abuses to the attention of the Court as soon as possible, because this litigation is entirely spurious and does nothing but delay the proceedings, take up the time of the court unnecessarily, and expose the Minister to unnecessary legal costs.
This is the fourth time that the Applicant has commenced proceedings. He has been through the appeal system all the way to the High Court of Australia, and he has attempted to start again by means of a spurious second application to the Refugee Review Tribunal.
This is an obvious abuse of process, and it is also vexatious. I am of the view that the Court should make an order requiring leave of the Court to be obtained before the Applicant is permitted to commence any proceedings relating to any decision of the Refugee Review Tribunal.
There is also the question of costs. I am asked, and in my view on appropriate grounds, to make a determination of costs under the provisions of Rule 21.03(3) of the Court Rules. That Rule provides that the Court may vary the maximum costs specified if, in the Court's opinion, there are special reasons and it is in the interests of justice to do so.
What I am asked to do is to make an order for costs which more accurately reflects the costs to the First Respondent Minister than an order for costs on a party and party basis would do, and particularly an order for costs under the relevant provision of the rules.
It is well established that an abuse of process or a vexatious proceeding can be the subject of costs on an indemnity basis, as has been held in the Federal Court in Colgate Palmolive v Cussons Pty Ltd.[11] This is an appropriate case.
[11] (1993) 46 FCR 225
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 12 February 2008
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