SZIDS v Minister for Immigration
[2007] FMCA 1812
•22 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIDS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1812 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – previous judicial review proceedings dismissed by consent – fresh proceedings on that cause of action vexatious and not arguable. |
| Federal Magistrates Court Rules 2001, rr.13.10, 44.12 |
| Applicant: | SZIDS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2698 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 22 October 2007 |
| Date of last submission: | 22 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2007 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Pursuant to r.13.10 the application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2698 of 2007
| SZIDS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant comes from China where he claims he was involved in Falun Gong activities. He alleges that while in China his Falun Gong activities led to him being detained and to him suffering mental and physical torture. The applicant claims to fear persecution in China because of his participation in and adherence to Falun Gong.
After the applicant arrived in Australia he lodged an application for a protection visa. This application was refused by the Minister's delegate on 31 August 2005. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision which was signed on 30 November 2005. The applicant was unsuccessful before the Tribunal and then brought proceedings in this Court which were ultimately dismissed by consent.
The matter is before the Court again because the applicant has filed a second application for review of that Tribunal decision. The matter is before the Court today on the first respondent's application for summary dismissal pursuant to r.13.10 of the Rules of Court.
In the application the following grounds are pleaded:
1. Applicant was not given the opportunity to attend an interview with the Tribunal.
2. Applicant was not given the opportunity to provide further evidence.
The first respondent submits that:
·the proceedings brought by the applicant are either vexatious or an abuse of process;
·the applicant is estopped from bringing these proceedings;
·the proceedings are barred because the applicant's claim has already been determined by the Court and the res judicata rule applies; and
·the application discloses no reasonable cause of action.
The argument that the application discloses no reasonable cause of action appears to combine relief available under r.13.10(a) and r.44.12(1)(a). To the extent that it is a reference to the latter, notwithstanding that r.13.10(a) is referred to in the application in a case, the authorities show that an application should not be dismissed for want of a cause of action unless the lack of a cause of action is clearly demonstrated, the claim is groundless or there is a high degree of certainty about the outcome. As the application in a case suggests, the proceedings may also be dismissed if they have no reasonable prospects of success, are frivolous or vexatious or are an abuse of the process of the Court.
The chronology of relevant events is found in the affidavit of Richard John Baird sworn 21 September 2007 and in the documents which have become Exhibit “A”. In order to determine this application it is appropriate that relevant elements of that chronology be set out. They are:
a)on 31 August 2005 the delegate refused the applicant's application for a protection visa;
b)on 30 November 2005 the Tribunal signed its decision affirming the delegate's decision not to grant the applicant a protection visa;
c)on 19 January 2006 the applicant filed an application in this Court seeking judicial review of the Tribunal's decision;
d)on 12 July 2006 Emmett FM made orders by consent dismissing the application to this Court;
e)on 31 August 2007 these proceedings were commenced.
The orders made by Emmett FM on 12 July 2006 finally disposed of those proceedings. In his arguments today the applicant has referred the Court to the apparent fact that the proceedings before the Tribunal and before the Court on the previous occasion were brought by him in a name which was not his real name. In an affidavit filed in Court and affirmed on 16 October 2007 the applicant deposes to what he says is his true name.
The applicant has also submitted that he was defrauded by his migration agent, encouraged not to attend the Tribunal hearing and it appears from the Tribunal's decision record which is part of Exhibit “A” that in fact he did not attend the Tribunal hearing. He also says that he agreed to terminate the first set of proceedings.
In these proceedings, as in the previous proceedings, the applicant seeks review of the Tribunal's decision on the basis that it is affected by jurisdictional error. However, notwithstanding what the applicant has said in relation to the alias which was used in the previous proceedings, it does not alter the fact that it was he who brought the proceedings in relation to the application which he had made to the Tribunal, consequent upon the application for a protection visa which he had made at the outset.
In my view the applicant's action must fail because, notwithstanding the issues in relation to what name was being used by the applicant at any particular time since his protection visa application was made, it was nevertheless he who was identified by that name. The fact that a different name was used does not alter the substance that it was he who was the applicant to the department, and to the Tribunal or the litigant in this Court.
Consequently, his claim for judicial review on the basis of jurisdictional error has already been determined and cannot be re-litigated. As a result of this, his claim on this occasion is not arguable. As to the other basis for dismissal which the first respondent has raised, I conclude that these proceedings are vexatious because they are an attempt to re-agitate issues which have already been settled by the parties. Although the applicant has today made allegations against his migration agent these were things which, were they to have been relied upon, ought to have been relied upon in the previous proceedings and agitated at that time. Having agreed to the dismissal of those first proceedings the applicant now cannot re-agitate in these proceedings claims which, whether expressly or impliedly, he permitted be dismissed by consenting to the dismissal of the proceedings last year.
Having settled those proceedings it is not open to the applicant to re-start them, which is essentially what he seeks to do.
As the applicant has no reasonable prospects of success and I am of the view that the proceedings are vexatious they will be dismissed pursuant to r.13.10.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 November 2007
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