SZIHQ v MIMA

[2006] FMCA 496

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 496

MIGRATION – Visa – protection visa – application for review of decision of the Refugee Review Tribunal.

PRACTICE & PROCEDURE – Abuse of process – where fresh application made to Tribunal without jurisdiction.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s. 475A

NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1170
NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 106
SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 459
SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1169
SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1688
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Colgate Palmolive Pty Ltd v Cussons Limited (1993) 46 FCR 225

Applicant: SZIHQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 408 of 2006

Judgment of: Scarlett FM

Hearing date: 3 April 2006

Delivered at: Sydney

Delivered on: 3 April 2006

REPRESENTATION

The Applicant: In person

Solicitor for the Respondent: Ms Knight

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed as an abuse of process.

2. The Applicant is to pay the First Respondent’s costs on an indemnity basis in the sum of $4,000.00.

3. I FURTHER ORDER that no further application by this Applicant for review of any decision of the Refugee Review Tribunal arising out of or in connection with the decision of the delegate made on 30 December 1999 be accepted for filing in this Court without leave of this Court, save as to any appeal from this proceeding.

4. I FURTHER NOTE on the file that the Applicant is warned that he is in danger of being declared a vexatious litigant if he chooses to continue bringing applications which are an abuse of process of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 408 of 2006

SZIHQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was made on 1^st February 2006 and forwarded to the Applicant under cover of a letter dated that same day. The decision, which was made by the Principal Member of the Refugee Review Tribunal, was that the Tribunal did not have jurisdiction in the matter.  The Applicant seeks review of this decision.

Background

1. The background to this matter is complex. It is relevant to cite the litigation history. The Applicant arrived in Australia on 20^th October 1999 and applied for a protection (Class XA) visa on 9^th November 1999. That application was refused on 30^th December 1999, and the Applicant applied for review of that decision on 20^th January 2000.

2. The Applicant attended a hearing and gave oral evidence on 9^th April 2002. The Tribunal made a decision on 7^th May 2002 and handed it down on 6^th June 2002.  The decision of the Tribunal was to affirm the decision of the delegate not to grant a protection visa to the Applicant.

3. The Applicant then set in train a series of proceedings before various Courts exercising Federal jurisdiction. On 28^th June 2002 he filed an application to the Federal Court of Australia. On 19^th September 2002 Jacobson J dismissed that application. The citation for that decision is NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1170.

4. The Applicant then appealed against that decision, and that appeal was heard by the Full Federal Court on 15^th May 2003. The Full Court proceeded to hear the appeal on its merits in the Applicant’s absence, and dismissed the appeal with costs. The citation for that decision is NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 106.

5. The Applicant then sought special leave to appeal to the High Court of Australia. That matter came before the High Court of Australia on 30^th April 2004 and special leave was refused with costs.

6. In the meantime the Applicant had commenced proceedings in this Court seeking review of the same decision. On 16^th July 2004 that application came before Raphael FM and his Honour dismissed the application under Rule.13.10(c) of the Federal Magistrates Court Rules 2001. The citation to that decision is SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 459.

7. Notwithstanding the fact that that application had been dismissed as an abuse of process, the Applicant then filed a Notice of Appeal in the District Registry of the Federal Court. That application should have been an application for leave to appeal as the judgment of Raphael FM was an interlocutory judgment. In any event, on 10^th September 2004 Beaumont J dismissed the appeal with costs. The citation to that decision is SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1169.

8. The Applicant then sought special leave to appeal from the judgment of Beaumont J in the Sydney Registry of the High Court of Australia. That application for special leave was refused on 16^th June 2005. The citation is [2005] HCA Trans 395.

9. The Applicant then changed tack and filed an application for a review of the decision of the delegate of the Respondent, rather than an application for a review of the decision of the Refugee Review Tribunal, as had been the case in the two earlier applications. That application came before Smith FM on 10^th October 2005 and was heard by his Honour on 10^th October and 8^th November 2005.

10. On 8^th November 2005 Smith FM dismissed the application as an abuse of process of the Court and made an order that the Applicant would pay the Respondent’s costs on an indemnity basis.  His Honour further directed that no further application for review of the decision of the Refugee Review Tribunal, or for review of the decision of the delegate of the Respondent dated 30^th November 1999, or for review of any notification of those decisions, should be accepted for filing without prior leave of the Court. The citation to that is SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1688.

11. What the Applicant has now done is filed a fresh application to the Refugee Review Tribunal. That application was filed on 21^st October 2005, before the earlier proceedings in this Court had been completed.  That application was for a review of the delegate’s decision of 30^th December 1999. The Tribunal had written to the Applicant on 24^th November 2005 informing him that his application appeared to be ineligible because the Tribunal had already reviewed the decision of 30^th December 1999 and that review had been completed on 7^th May 2002. The Tribunal gave the Applicant until 19^th December 2005 to write to the application and put forward his views as to why he thought the Tribunal had failed to consider it. There is no evidence that any letter was received.

The tribunal’s findings and reasons

1. On 1^st February 2006 the Tribunal handed down its decision that it has no jurisdiction in this matter. The Tribunal in its findings and reasons noted the Applicant’s earlier claim of the reference to an invalid deeming provision and his claim that technically he had not been validly notified of the decision made in 1999 and the time had not started to run for the purposes of the relevant sections, s.412 and r.4.31. As the Tribunal pointed out at page 43 of the Court Book:

   In this case however, the Applicant lodged an application for review well within the time limit (wrongly) specified in the notification letter. The Tribunal accepted that application, conducted a review and notified the Applicant of its decision by letter dated 4 June 2002.  As the Tribunal has already discharged its functions under the Act to review the delegate’s decision dated 30 December 1999, it no longer has jurisdiction in relation to that decision.  SeeJayasinghe v Minister for Immigration & Ethnic Affairs & Anor (1997) 76 FCR 301.

2. The Tribunal found it did not have jurisdiction in the matter.

The application for judicial review

1. The Applicant has filed an application for review of that decision and an Amended Application on 20^th March 2006. The Respondent Minister has filed a Response seeking that the application should be dismissed on the grounds that the application has not raised an arguable case for the relief claimed. It is also submitted that the application is an abuse of process.

2. The Applicant’s Amended Application claims that the Respondent Refugee Review Tribunal was wrong in holding that the Tribunal discharged its obligation to review the decision in the earlier proceedings. A number of particulars were given which I will summarise as follows.

   a)First, that the decision in the earlier review was infected by jurisdictional error.

   b)Second, that the Applicant was not able to establish jurisdictional error because he was not legally represented.

   c)The Applicant complained about the reliance on country information which he alleges is a breach of s.424A of the Migration Act; and that the Tribunal had grave doubts about the Applicant’s identity and did not disclose that to the Applicant; and that the Tribunal did not accept certain factual findings.

   d)The Applicant also claimed that the Tribunal erred in holding that it did not have jurisdiction to discharge its obligation on the application for review made on 21^st October by claiming the decision is wrong for a number of reasons:

   First, if the decision made by the Tribunal previously was infected by jurisdictional error objectively and subjectively the obligation to discharge its duty to conduct a review validly cannot be taken to be fulfilled.

   Second, if an Administrative Tribunal fails to discharge its obligation to conduct a review according to law, and the notification of the primary decision maker was also affected by jurisdictional error, a later application to the Tribunal can also be treated as a valid application.

   It was common ground that the notification made by the delegate of the Minister was invalid, with the Tribunal agreeing with that.

3. The Applicant also says that he is unrepresented and wishes to seek assistance from this Court.

4. The Applicant has made an oral submission today to the extent that the first decision of the Refugee Review Tribunal was wrong and relies on the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. He also submits that there is nothing in the legislation that prevents a second application to the Tribunal.

5. I have considered all of those submissions. In my view the submissions as a whole, both written and oral, can best be described as specious and nonsense.  The application is clearly and blatantly an abuse of process. 

6. Dealing with the Amended Application, the ground and the particulars relating to the earlier decision of the Refugee Review Tribunal are irrelevant. The Applicant is not asking this Court to review the earlier decision of the Refugee Review Tribunal. He has already asked the Federal Court, the Full Federal Court twice, the High Court of Australia twice, and the Federal Magistrates Court once, to review that decision.  He has been uniformly and consistently unsuccessful. It is quite clear that any argument that could have been raised in respect of any alleged inefficiency in the decision of the Refugee Review Tribunal could, and should, have been put to a Court of competent jurisdiction long before now. Not only, in my view, does the doctrine of res judicata apply, so do does the question of Anshun estoppel and there are no special circumstances that would warrant arguing another ground.

7. It is irrelevant that the Applicant was unrepresented. Most applicants in this jurisdiction are unrepresented.  Something like 30 per cent of all applications in all jurisdictions heard by the Federal Magistrates Court - a jurisdiction I note which has almost doubled in size and extent in less than six years. 30 per cent of these applicants at least are unrepresented.  It is not a privilege to be without legal representation; it is a misfortune.

8. The Applicant has also sought review of the decision of the delegate.  That application was dismissed as an abuse of process by Smith FM on 8^th November 2005. I have had the opportunity to read through his Honour’s reasons for that decision, and with respect I agree with them.

9. What the Applicant has now done is brought a fresh application out of time to review the early decision of the Refugee Review Tribunal. It has been correctly held by the Tribunal that the Tribunal has no jurisdiction because it has discharged its obligation and is functus officio. I refer to the decision of Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor referred to in the Tribunal decision.

10. It is, of course, a fact that s.412 of the Migration Act sets a time period of 28 days and the application is well and truly outside that. As for the argument that the reference to notification was incorrect, that is an argument entirely without substance. I have already dealt with that argument on a prior occasion, but I will make it quite clear that there are two reasons why that notification proposition cannot succeed. The first reason is contained in s.66 of the Migration Act itself relating to notification of a decision. Sub-section 4 provides that:

    Failure to give notification of a decision does not affect the validity of the decision.

11. The other point, of course, is the point made by the Principal Member of the Tribunal in the Refugee Review Tribunal decision made on 1^st February 2006.  The Applicant did lodge an application for review well within the time limit, wrongly specified in the notification letter.  The Applicant has in fact been through proceedings in the Federal Court, the Full Court of the Federal Court, the Federal Magistrates Court and the High Court in respect of that decision. To argue at this stage that there was no valid notification is to my mind ludicrous.

12. The applicant has also said that the decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 is a decision of the High Court that says that the Tribunal decision was wrong. The fact is that in these proceedings brought by the Applicant there are already two decisions by the High Court relating to the Applicant’s particular application which can be taken to say that the decision is not wrong.

13. Finally, as to the argument there is nothing in the legislation to say that a further application for review cannot be brought to the Refugee Review Tribunal. Leaving aside the time limit as set out in s.412, it should be stated quite clearly that there is no need for the legislation to make such a provision because the opposite proposition, that which is argued by the Applicant, is on the face of it quite absurd. It must be clear that if the Tribunal has the power to take a fresh application to review the same decision of the delegate, there are only two things that can flow - either that the earlier Tribunal decision must be quashed or that the earlier Tribunal decision remains in force. If a second decision by the Tribunal on a delegate’s decision has the effect of quashing the first decision, what, one would ask, is the point of an application for judicial review to the Federal Magistrates Court or the Federal Court? There would be no need.

14. If, on the other hand, a fresh application to review the decision of the delegate could be made and the Tribunal were to hear that application and brought out a decision that was contrary to the earlier decision, if the earlier decision was not thereby quashed, the absurdity would be that both decisions, totally contradictory, would remain in force. It would be quite open to the Department to prefer one and the Applicant to prefer the other. What would happen then? Would a third application need to be made, and would a majority of two to one decisions decide the matter?  The absurdity of the proposition put by the Applicant I think has been adequately demonstrated. It is nonsense to say that there is nothing in the legislation to prevent an application being brought again in the case of a total misconception of the review process.

15. This is quite clearly an abuse of process. It is an application that quite obviously has been brought for no other purpose than to enable the issue or the extension of a bridging visa. It is a blatant abuse of process, and to my mind it is so blatant that the Applicant is in danger of being declared a vexatious litigant.

16. The application is dismissed as an abuse of process. I propose to make an order placing serious restrictions on his ability to approach the Court with any fresh application.

17. There is an application for costs. These proceedings have been found to be an abuse of process and the applicant has previously had a finding made against him about an abuse of process. To my mind this is a matter that calls out for a costs order and the decision of the Federal Court in Colgate Palmolive Pty Ltd v Cussons Limited (1993) 46 FCR 225 is clear authority for the making of an order on an indemnity costs basis in matters such as this.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  10 April 2006