SZHLV v Minister for Immigration & Anor
[2006] FMCA 1619
•25 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHLV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1619 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of a delegate of the Minister not to grant the applicant a protection visa – applicant has made previous applications to review RRT decision. PRACTICE & PROCEDURE – Notice of motion – summary dismissal – abuse of process. |
| Federal Magistrates Court Act 1999 (Cth), s.15 Federal Magistrates Court Rules 2001 r.13.01, 13.10(c). 13.11(3)(b) |
| Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 SZAKL v Minister for Immigration & Anor [2005] FMCA 1965 SZASY v Minister for Immigration [2004] FMCA 440 SZASY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1074 SZASY v Minister for Immigration & Anor [2005] FMCA 1288 |
| Applicant: | SZHLV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3123 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 October 2006 |
| Date of Last Submission: | 25 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
Leave to apply for review of a decision of the delegate of the Minister for Immigration & Multicultural Affairs made on 10 May 2001 refusing to grant a protection visa to the applicant or review of any notification of that decision is refused.
The applicant is dismissed as an abuse of process.
That the applicant is to pay the first respondent’s costs on an indemnity basis fixed in the sum of $2,800.00.
No further application for review of the decision of the Refugee Review Tribunal handed down on 28 May 2003 reference N01/38823 or for review of the decision of the delegate of the first respondent dated 19 May 2001 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
The waiver of the filing fee of the application made on 26 October 2005 is revoked.
The applicant is to pay the Court costs of $288.00 to the Collector of Public Moneys, Federal Magistrates Court of Australia, Level 16, Commonwealth Law Courts Building, Sydney, NSW, 2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3123 of 2005
| SZHLV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
Before the Court is a notice of motion brought by the solicitors for the first respondent Minister. The notice of motion refers to the substantive application which appears to have been accepted for filing on 26th October 2005. The application is to review 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 claims to have been notified of the decision that is the subject of this application on
10th May 2001.
The Minister asks that the proceedings be dismissed in the notice of motion, pursuant to r. 13.01 of the Federal Magistrates Court Rules, on the basis that the proceeding is frivolous or vexatious or the proceeding is otherwise an abuse of process. The notice of motion also says that further, or in the alternative, that the proceedings are barred on the basis of the doctrine of res judicata. The notice of motion goes on to say that further, or in the alternative, the applicant is estopped from bringing the application on the basis of the doctrines of issue estoppel and Anshun estoppel. Under the notice of motion the Minister seeks an order that the applicant not be permitted to institute any proceedings in this Court seeking review of the decision made by the Refugee Review Tribunal on 2nd May 2003 and handed down on 28th May 2003 without first obtaining the leave of the Court, pursuant to r. 13.11(3) (b) of the Federal Magistrates Court Rules. The Minister also seeks costs on an indemnity basis.
The applicant has told the Court that he did not get natural justice or any justice previously, he did not get the right justice he said, and that he has set out all that he wishes to say in his application and in his submissions, which were filed on 23rd June 2006. There was also an affidavit filed on that same day.
It appears to me, and indeed it was raised before me by the solicitor for the respondent Minister, Mr Cramer, this morning that the appropriate procedure - or perhaps the appropriate order to be sought - is a refusal to grant leave to bring the application. The fact is that in previous proceedings relating to this same matter, the reference to which is SZASY v Minister for Immigration & Anor [2005] FMCA 1288, on
26th August 2005 Federal Magistrate Smith dismissed the substantive application under r. 13.10(c) as an abuse of the process of the Court, made an order for costs against the applicant, and made the following direction: "Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 28th May 2003, reference N01/38823, or for review of the decision of the delegate of the first respondent dated 10th May 2001, or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court". Notwithstanding that direction by His Honour, the substantive application before me today was not only accepted for filing but the filing fee of $288.00 was waived. The fact is that before the applicant could seek to have a Court review the delegate's decision or the notification of that decision, or the decision of the Refugee Review Tribunal, leave should have been obtained in accordance with Federal Magistrate Smith's order. I see nothing in the file to indicate that such a proceeding ever took place. The Minister relies on a notice of motion, an affidavit of Ben Cramer, solicitor, filed on
17th January 2006, and the first respondent's outline of submissions filed on 16th June 2006.
The short chronology of events will suffice to set the notice of motion in perspective. The applicant is a citizen of Bangladesh who arrived in Australia on 26th April 2001. On 3rd May 2001 he applied for a protection visa. On 10th May 2001 the delegate of the Minister refused to grant the applicant a protection visa. It is that decision which is the subject of the substantive application before the Court today.
On 28th May 2001 the applicant lodged an application at the Sydney Registry of the Refugee Review Tribunal seeking review of the delegate's decision. The applicant claimed that he would be persecuted in Bangladesh for reasons of political opinion and because of his involvement with the Bangladesh Freedom Party. On 28th May 2003 the Tribunal affirmed the delegate's decision not to grant a protection visa.
On 11th June 2003 the applicant filed an application in this Court for review of the Tribunal's decision. On 22nd June 2004 Her Honour Federal Magistrate Barnes dismissed that application. The citation for that decision is SZASY v Minister for Immigration [2004] FMCA 440. On 8th July 2004 the applicant filed a notice of appeal in the Registry of the Federal Court of Australia. On 12th August 2004 His Honour Justice Wilcox dismissed the appeal. The citation for that decision is SZASY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1074.
The applicant then on 1st September 2004 applied to the High Court of Australia for special leave to appeal against the decision of Justice Wilcox. On 26th May 2005 in the High Court of Australia their Honours the Chief Justice and Justice Gummow dismissed the application for special leave to appeal, with costs. The citation for that decision is [2005] HCA Trans 346. Undeterred by this string of refusals, the applicant then commenced proceedings again in this Court by filing an application on 20th June 2005. A copy of that application is annexed to the affidavit of Ben Cramer, filed on 17th January 2006, and seeks a review of the Tribunal decision.
On 15th July 2005 the solicitors for the respondent Minister filed a notice of objection to competency and a notice of motion asking the Court to dismiss the application on the grounds that the proceeding is frivolous or vexatious or the proceeding is otherwise an abuse of process. The notice of motion was framed in similar terms to the notice of motion that is before me today. That matter was heard by His Honour Federal Magistrate Smith on 26th August 2005. A copy of that decision is annexed to Mr Cramer's affidavit. The citation for the decision is [2005] FMCA 1288. His Honour dismissed the substantive application as an abuse of process, made an order for costs and made a direction that no further application for review be filed without leave.
On 13th September 2005 the applicant then sought leave to appeal against the decision of Federal Magistrate Smith. On 7th October 2005 in the Federal Court Justice Bennet dismissed the application for leave to appeal and directed that no further application for review of the decision of the Refugee Review Tribunal handed down on
28th May 2003, reference number N01/38823, or for review of the decision of the delegate of the first respondent dated 10th May 2001 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court. Notwithstanding those orders, the applicant then commenced proceedings again by filing the application in this Court seeking to review the delegate's decision.
The application is to review the notification of the decision and the decision itself. It is clear that the applicant has, in effect, commenced proceedings for the third time.
The solicitor for the Minister submits correctly that the substantive application is an abuse of process. He further submitted that any defect in the delegate's decision, if there was one, which he did not concede, was cured by the review that was conducted in the Refugee Review Tribunal. He further submitted that there was no error in the Refugee Review Tribunal decision and that an Anshun estoppel would apply.
I have considered the material before me. I have read the decision of my learned colleague Federal Magistrate Barnes in SZASY v Minister for Immigration (supra), which I have previously cited. In that decision, with respect, Her Honour conducted a thorough examination of the applicant's claims and dealt with the applicant's application for review of the decision of the Refugee Review Tribunal. Her Honour in the final paragraph, paragraph 20 of the decision, said this: "In all the circumstances, no jurisdictional error in respect of which a remedy should sound is apparent. The application therefore must be dismissed. The applicant should pay the respondent's costs".
I have also read the decision of my learned colleague Federal Magistrate Smith in SZASY v Minister for Immigration & Anor [2005] FMCA 1288. That decision was brought about as a result of the notice of motion brought by the Minister on an application for summary dismissal. His Honour considered the litigation history of the matter as it then stood and noted the notice of objection to competency and came to this conclusion at [12]: "My above conclusions and the history of the matter reveal to me clearly that the continuance of the present proceeding would be an abuse of process and that it is appropriate for this Court to exercise its power under r. 13.10(c) to dismiss the proceeding. When exercising that discretion, I have taken into account the applicant's submission to me explaining the continuance of his litigation by reference to what he feels is the risk to his life if he has to return to Bangladesh. However, in my view the principles underlying the principles of estoppel based on the need for finality in litigation are as applicable to litigation concerning refugee decisions as to any other litigation in Australian courts. In this case I consider they should be given effect to. I shall therefore make the order of dismissal sought in the motion".
His Honour went on to say, prophetically as it turned out, in [14]:
In recent weeks it has been apparent that the documents which have been used as precedents by unrepresented applicants in this Court have been modified to get around such directions -
and by that His Honour referred to directions to the Registry not to accept further applications without leave of the Court -
by framing fresh proceedings as a challenge to the delegate's decision, which was taken on appeal and affirmed by the Tribunal. In my opinion such applications are equally an abuse of the process of the Court and represent a continuing vexation to the Minister from which she should be protected. I consider in the present case that it is appropriate for me to frame my direction broadly so as to encompass all challenges to the administrative decisions and processes which led to the Tribunal's decision which ultimately determined the applicant's visa application.
In this case it is quite clear that the proceedings are a blatant abuse of the process of the Court. The applicant has commenced proceedings in respect of the same subject matter three times. His first proceedings went all the way to the High Court, where special leave to appeal was refused. The second time leave to appeal was refused by the Federal Court. It is no coincidence, in my view, that the application in these proceedings was filed on 26th October 2005, some 19 days after the order by Justice Bennett refusing leave to appeal.
I have had occasion to deal with this situation in the matter SZAKL v Minister for Immigration & Anor [2005] FMCA 1965. I said then at [20]:
In my mind this is an abuse of process. The application has been brought for an ulterior purpose because it relates to an issue which has already been heard and determined and the process of the law has taken its course. It is appropriate for the application to be dismissed with costs. In the case of an abuse of process, the Federal Court has made it quite clear in Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 that this is a case where indemnity costs should be awarded rather than costs on a party-party basis.
I propose to dismiss the application, the substantive application before me with costs on an indemnity basis. I also commented in SZAKL (supra) at [24] that the decision of the Refugee Review Tribunal in that case was a privative clause decision because the Federal Magistrates Court had already found it to be so and that decision had not been overturned on appeal. The situation is the same in the matter before me. The other matter to which I referred relatively briefly before was that the applicant was not only able to get his application across the counter without the leave that Federal Magistrate Smith and, for her part, Justice Bennett directed should be obtained, but that he was able to have the filing fee of $288.00 waived.
I made these comments in SZAKL at [25]:
The only other issue, which is a relatively minor one, is that the applicant was able to persuade the Registry when filing this application to waive the filing fee of $288.00. I have since found this application to be an abuse of process of the Court. Section 15 of the Federal Magistrates Court Act 1999 to my mind gives this Court the authority to deal with abuses of its own process. It is contrary to policy for the Court to waive a filing fee and allow an applicant not to pay for an application which is an abuse of the Court's own process. For this reason I propose to revoke the waiver of the filing fee on the application made on
24th August 2005.
In the case before me it is quite clear that I should follow my earlier action. It is a blatant abuse of process, as I said earlier. It is most regrettable that the proceedings reached this stage, notwithstanding the fact that Federal Magistrate Smith had made it quite clear in his orders of 26th August 2005 that no further application for review of the Tribunal decision or for review of the delegate of the first respondent or for review of any notification of those decisions should be accepted for filing without prior leave of the Court. I do not know why His Honour's clear direction was ignored. I am not going to ignore it.
I believe it should be followed and, indeed, I propose to make that direction yet again.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 31 October 2006
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