SZILE v Minister for Immigration
[2006] FMCA 957
•28 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZILE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 957 |
| MIGRATION – Application for summary dismissal – where prior review by Tribunal and unsuccessful judicial review – second application to Tribunal – Tribunal found it had no jurisdiction – application for review of second Tribunal decision – abuse of process. |
| Migration Act 1958 (Cth) Federal Magistrates Court Rules 2001 |
| Jayasinghe vMinister forImmigration& Ethnic Affairs& Anor (1997) 76 FCR 301 Walton v Gardiner (1993) 177 CLR 378 |
| Applicant: | SZILE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG632 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 28 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application filed on 28 February 2006 be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of process; and in the alternative that the proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 as the party prosecuting the proceeding has no reasonable prospect of successfully prosecuting the proceeding or claim.
That the applicant pay the costs of the first respondent fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG632 of 2006
| SZILE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the court by way of the respondent's application for summary dismissal on grounds relied on in a response filed on 17 March 2006. The background to these proceedings is that the applicant arrived in Australia in March 1999 and applied for a protection visa in July 2000. That application was refused by a delegate of the first respondent. The applicant sought review by the Refugee Review Tribunal (the Tribunal) on 28 September 2000. On
17 October 2002 the Tribunal handed down a decision affirming the decision of the delegate of the first respondent not to grant the applicant a protection visa.
The applicant sought judicial review of that decision by application filed in this court on 7 May 2003. He filed an amended application in September 2003. On 15 October 2004, Driver FM dismissed the application of the applicant as incompetent and ordered that he pay the respondent's costs. His Honour found that the decision of the Tribunal was free from any jurisdictional error and was a privative clause decision. The applicant appealed from the decision of Driver FM on 4 November 2004. On 14 February 2005 Jacobson J dismissed the application for leave to appeal.
Subsequently, on 10 November 2005, the applicant lodged a second application for review of the delegate's decision with the Tribunal. On 8 February 2006 the Tribunal made a decision that it did not have jurisdiction to review the decision refusing to grant the applicant a protection visa. It is this second Tribunal decision that is the subject of these proceedings, commenced by application filed on 28 February 2006.
In his application of 28 February 2006 the applicant relies on generally expressed and unparticularised grounds that in making the decision the Tribunal made a jurisdictional error by denying him procedural fairness, by violating the duty it was under in satisfying itself as to eligibility of the applicants for protection visas and “by denying the misapplying the law”. In a supporting affidavit the applicant claimed that he wished to seek review as he believed that Tribunal did not consider his application “in accordance with the law and procedures”.
At the directions hearing conducted on 21 March 2006 the matter was listed for the hearing of the respondent's interlocutory application for summary dismissal today. The parties were each ordered to file and serve written legal submissions in relation to these proceedings. The respondent has filed written submissions. There are no written submissions from the applicant.
The respondent seeks that the application be summarily dismissed pursuant to Part 13 of the Federal Magistrates Court Rules, either on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding under Rule 13.10(a) or pursuant to Rule 13.10(c) on the basis that the proceeding are an abuse of the process of the Court.
It is relevant to have regard to the second Tribunal decision in considering these grounds. As indicated, this was the second application to the Tribunal for review of the same delegate's decision. The Tribunal was satisfied that the applicant had been validly notified of the delegate's decision in the first instance, that decision having been made on 20 September 2000. It noted that the applicant had first applied to the Tribunal for review of that decision on 28 September 2000. It had regard not only to the fact that the applicant had sought review of the Department's decision but also to the provisions of the Migration Act 1958 (Cth) (the Act) in relation to notification of decisions. It was satisfied that the notice of the delegate's decision complied with the requirements of the Act. Furthermore, the Tribunal noted that the applicant had lodged the first application for review within the time limits specified, that the Tribunal had accepted that application and had conducted a review. It found that, as the Tribunal had already discharged its functions under the Act to review the delegate's decision dated 20 September 2000, it no longer had jurisdiction in relation to that decision. See Jayasinghe vMinister forImmigration& Ethnic Affairs& Anor (1997) 76 FCR 301. The Tribunal also found that as the review application of 10 November 2005 was received by it outside the mandatory time limit under the provisions of the Migration Act 1958 (Cth), it had no jurisdiction to review the delegate's decision.
It is relevant to note that, as the Tribunal stated in its reasons for decision, after the second application was lodged the Tribunal formed the preliminary view that it did not have jurisdiction. It wrote to the applicant on 24 November 2005 inviting submissions on this issue. The applicant made written submissions (which the Tribunal sets out in its reasons for decision) to the effect that when he applied to the Department and the Tribunal he could not submit supporting documents in support of his claim and in the hearing could not provide oral evidence in support of his claim, and contended that in the absence of clear evidence the Tribunal was obliged to verify the authenticity of documents and evidence made by him or otherwise through official channels before calling it into question. He also claimed in submissions to the Tribunal that its adverse findings were not supported by any positive evidence and that the rejection of his claim was marred by a failure to follow procedures as required by law. He suggested that as the Tribunal had exceeded its jurisdiction the matter should be reviewed by the Tribunal.
The Tribunal did not accept these submissions and noted that the applicant had unsuccessfully sought judicial review of the Tribunal's decision, in which, I add, he had the opportunity to raise those concerns about the first Tribunal decision.
I am satisfied first that the present proceedings are an abuse of process. The application for judicial review of the second Tribunal decision cannot succeed. There is no argument mooted or available to the applicant which holds any prospect of establishing jurisdiction in the Tribunal to further consider his entitlement to a protection visa. Allowing the proceedings to continue in circumstances where there has been a delegate's decision of which the applicant has had a full review by the Tribunal (including a hearing which he attended) such that it has discharged its functions under the Act, and where there has been judicial review by this Court and in the Federal Court, is a situation which, I am satisfied, would bring the administration of justice into disrepute. See Walton v Gardiner (1993) 177 CLR 378 at 393.
It is relevant for the court to have regard to all of the circumstances and I have done so insofar as possible on the material before me, including the underlying public interest that there be finality in litigation and that a party should not be vexed over and over again in the same matter: Johnson v Gore Wood & Co. [2002] 2 AC 1 at 22-34. Moreover, in the circumstances of this case, having regard to the applicant's litigation history, I consider it appropriate to draw the inference that the applicant has filed the present application for the collateral purpose of extending the period of his stay in Australia. In all of these circumstances then, I am satisfied that the present proceedings should be dismissed as an abuse of process.
The other ground relied upon is that the applicant has no reasonable prospect of successfully prosecuting the proceeding. It is unnecessary, strictly speaking, for me to reach a concluded decision in relation to that ground as I am satisfied that the proceeding constitutes an abuse of process. While the applicant filed no written submissions and in oral submissions accepted that what the solicitor for the respondent had said in submissions as to what had occurred was correct, he queried why, if the Tribunal did not want to review his case, it accepted his application. He claimed that he wanted his rights and that this was only fair.
However, these concerns raised by the applicant do not establish that he has any reasonable prospect of successfully prosecuting the proceeding. He has not identified any particular manner in which the Tribunal might be said to have fallen in error. Rather he asserts that he had a right and that the Tribunal should have considered his application because his application was accepted. I note in that respect that once the application was filed - and there is no suggestion that the application was not in the appropriate form - the Tribunal formed the preliminary view that it did not have jurisdiction because the application was out of time and because of the prior review. It sought the applicant's submissions on that issue. The applicant had the opportunity to make submissions and did so. The Tribunal thereafter reached the decision that it did not have jurisdiction.
In these circumstances, the concerns that the applicant now expresses are not such as to indicate any basis for the generally expressed grounds in his application for review. While that application for review is expressed in terms (such as procedural fairness) which may, in appropriate circumstances (where particularised and related to the facts of a particular case) be grounds for jurisdictional error, (depending, of course, on the operation of s.422B of the Act in relation to procedural fairness) the bare assertion of such grounds in circumstances where there is nothing in the material before the court or in the submissions of the applicant to indicate any basis for such bare assertions does not indicate that he has any reasonable prospect of success. In the particular circumstances of this case I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceedings.
Accordingly then, the application should be summarily dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules, and in the alternative, pursuant to Rule 13.10(a). Before I formally make those orders I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount of $2,000 which is sought is appropriate having regard to the nature of this and other similar matters.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 10 July 2006
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