SZIPI v Minister for Immigration
[2006] FMCA 901
•8 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIPI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 901 |
| MIGRATION – Application for review of Refugee Review Tribunal – refusal of Protection (Class XA) visa – decision of the Tribunal previously upheld by the Federal Magistrates Court, the Federal Court and the High Court – a second application filed with the Tribunal seeking review of the delegate’s decision dismissed for lack of jurisdiction – this application seeks review of second Tribunal decision – new application dismissed as an abuse of process. |
| Federal Court Rules 1979 (Cth), O.54B r.5 Federal Magistrates Court Rules 2001 (Cth), rr.1.05, 10.01, 13.10, 44.11, 44.12 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 412, 414, 476, 483A, 486D Migration Litigation Reform Act 2005 (Cth) |
| Applicant A321of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236 Jayasinghe v Minister for Ethnic Affairs & Anor (1997) 76 FCR 301 NBJZ v Minister for Immigrationand Multicultural and Indigenous Affairs [2005] FCAFC 119 SZHQR v Minister for Immigration & Anor [2006] FMCA 282 Webster v Lampard (1993) 177 CLR 598 |
| Applicant: | SZIPI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG970 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of an Bengali interpreter |
| Advocate for the Respondents: | Ms S Burnett |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 31 March 2006 is dismissed pursuant to rr.13.10(a), 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
That no further application for review of the decision of the Refugee Review Tribunal handed down on 23 September 2003, reference number NO2/44095 or for review of the Refugee Review Tribunal made on 23 March 2006, reference number NO6/53026 or for review of the decision of the delegate of the first respondent, dated 31 July 2002, or for review of any notification of those decisions, shall be filed without leave of the Court.
The applicant is to pay the first respondent's costs of these proceedings on an indemnity basis fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG970 of 2006
| SZIPI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney registry of the Federal Magistrates Court on 31 March 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). For the purposes of this judgment, this will be referred to as the second Tribunal decision. The second Tribunal decision was made on 23 March 2006 refusing to consider the review application or the ground that the Tribunal did not have jurisdiction.
I rely on the affidavit of Kathleen Mary Crawley, filed and read in these proceedings, as a summary of the litigation history of this matter and I adopt the contents of that affidavit for the purposes of this judgment:
(a)On 12 July 2002 the applicant lodged an application for a protection visa with the Department.
(b)On 31 July 2002 the first respondent's delegate determined not to grant a protection visa to the applicant.
(c)On the 22 August 2002 the applicant lodged an application for review of the delegate's decision with the Tribunal.
(d)On 23 September 2003 the Tribunal affirmed the delegate's decision not to grant the protection visa to the applicant.
(e)On 30 September 2003 the applicant applied for judicial review of the first Tribunal decision in the Federal Magistrates Court.
(f)On 9 March 2004 the applicant filed an amended application in the Federal Magistrates Court.
(g)On 9 March 2005 Barnes FM dismissed the application.
(h)On 24 March 2005 the applicant filed a notice of appeal for the judgment of Barnes FM referred to at (g) above.
(i)On 28 July 2005 Hely J exercising the appellate jurisdiction of the Federal Court dismissing the notice of appeal referred to in at (h) above.
(j)On 25 August 2005 the applicant filed an application for special leave to appeal in the High Court.
(k)On 15 December 2005 the High Court, constituted by Gummow and Heydon JJ, dismissed the application for special leave to appeal.
(l)On 11 January 2006 the applicant lodged a further application for review of the delegate's decision with the Tribunal.
(m)On 25 January 2006 the Tribunal received a document from the applicant titled "Change of Contact Details".
(n)On or about the 27 January 2006 the Tribunal sent a letter of the same date to the applicant advising him that it appeared that his application lodged with the Tribunal on 11 January 2006 was ineligible because it was lodged outside the requisite 28 day time period and the Tribunal had already reviewed the delegate's decision the subject of the application and invited comment from the applicant by the 21 February 2006.
(o)On 16 February 2006 the Tribunal received a letter from the applicant.
(p)On 23 March 2006 the Tribunal determined it did not have jurisdiction to review the applicant's further application for review of the delegate's decision.
(q)On 31 March 2006 the applicant filed these present proceedings.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicant sets out three grounds for review:
1.That the decision of the tribunal made a jurisdictional error by violating the duty it was under in satisfying itself as to eligibility of my protection visa,
2.That the decision of the tribunal made jurisdictional error by denying my hearing rights before the Tribunal
3.The Tribunal did not provide me an opportunity to put my case as required.
On 13 April 2006 solicitors for the respondents filed a response seeking the following interim order:
That the application filed on 31 March 2006 be dismissed pursuant to rule 13.10(a) and/or 13.10(b) and/or 13.10(c) of the Federal Magistrate Court Rules 2001 (Cth) on the grounds that no reasonable cause of action is disclosed in relation to the proceedings or claim for relief and/or the proceedings are vexatious and/or an abuse of process.
The applicant left the section ‘Other Court Proceedings’ in the application blank. This is incorrect and I have referred to the previous applications above, all of which have been unsuccessful. The failure to disclose these proceedings is a breach of s.486D of the Act. That section reads:
(1) A person must not commence a proceeding in the Federal Magistrates Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(4) Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section.
(5) In this section:
"judicial review proceeding”, in relation to a tribunal decision, means:
(a) a proceeding in the Federal Magistrates Court in relation to the tribunal decision; or
(b) a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or
(c) a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision.
"tribunal decision" means a privative clause decision, or purported privative clause decision, made on review by a Tribunal under Part 5 or 7 or section 500.
I believe that all that the applicant has done is filed another application in an attempt to start the whole circular process again. The applicant has not attempted to raise any new ground of review that was not put before the Courts on previous occasions. This is nothing more than an attempt by the applicant to further delay finality by misusing the Court's processes and is clearly an abuse of process, and is frivolous and vexatious: NBJZ v Minister for Immigrationand Multicultural and Indigenous Affairs [2005] FCAFC 119.
This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth) which has repealed the Court's previous broader jurisdiction under s.483A of the Act and introduced a new s.476. At the same time, the amendments of the Act introduced r.44.11(a) to Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), where the Court may dismiss an application on an interlocutory basis with specific reference to Rule 44.12. which states:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or
(b) …
(c) …
(2) To avoid doubt, a dismissal under paragraph 1(a) is interlocutory.
I note that this power should be exercised cautiously and only in the appropriate circumstances. In this case, there is an incontestable absence of jurisdiction due to the multiple times this applicant has been before the Courts as referred to above at [2]. The Federal Magistrates Court, the Federal Court and the High Court have determined that there is no jurisdictional error in the first Tribunal decision.
On 26 May 2006 the solicitor for the respondents filed an outline of submissions by which the first respondent sought interlocutory orders for dismissal of the applicant's application for judicial review. In those written submissions the first respondent submitted that there is no reasonable basis for the application. Rule 13.10(a) provides that the Court may, inter alia, order that a proceeding be dismissed generally if it appears that no reasonable cause of action is disclosed in relation to the proceedings. Pursuant to r.1.05 of the Rules and O.54B r.5 of the Federal Court Rules 1979 (Cth), the words “no reasonable cause of action” must be construed to mean that no reasonable basis for the application is disclosed. No reasonable basis for the application will be disclosed where
(a)The case for the applicant is so clearly untenable that it cannot possibly succeed: General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236.
(b)It is apparent that the application must fail if the case were to go to trial in the ordinary way: Webster v Lampard (1993) 177 CLR 598.
(c)One can say without doubt, on the whole of the material, that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.
The first respondent submits that the application should be dismissed because no reasonable basis has been disclosed.
Also that the second Tribunal was clearly correct in its finding that it lacked jurisdiction. In addition, the second Tribunal correctly concluded that the applicant had lodged his application outside the 28 day time period, therefore the application was not valid and was not obliged to continue the review, there being no jurisdiction to do so: ss.412(1)(b) and s414(1) of the Act. Moreover, the second Tribunal had already discharged its functions under the Act to review the delegate's decision, for an alternate reason it no longer had jurisdiction in relation to that decision: Jayasinghe v Minister for Ethnic Affairs & Anor (1997) 76 FCR 301; SZHQR v Minister for Immigration & Anor [2006] FMCA 282.
It is submitted that the current review application contains unparticularised grounds of review. The applicant alleges that the second Tribunal fell into jurisdictional error in determining the eligibility of his application, denied him his hearing rights before it or otherwise failed to give him an opportunity to put his case as required. In respect of the first Tribunal decision handed down on 23 September 2003, the first Tribunal duly invited the applicant to attend a hearing on 3 July 2003, at which the applicant attended and gave oral evidence. This invitation was sent to the applicant's authorised recipient and to the applicant at the addresses he provided. In respect of the second Tribunal decision dated 23 March 2006, on or about 27 January 2006, the second Tribunal wrote to the applicant inviting him to provide reasons why it should reconsider his application, when, in its view, it lacked jurisdiction to hear the matter again because it was out of time and the Tribunal had previously considered the application for review of the Delegate's decision lodged by him. On 16 February 2006 the second Tribunal received submissions from the applicant. However, he did not give any reasons why he sought the second Tribunal to reconsider his case other than he had followed other refugee applicants in lodging a repeat application to the Tribunal and to assert that he was a refugee. The first respondent submits that both the first and second Tribunal have correctly discharged their obligations and the second Tribunal correctly concluded it lacked jurisdiction. I accept those submissions.
It is submitted by the first respondent that further or in the alternative, these proceedings are an abuse of process subject to r.13.10. The first respondent relies on Applicant A321of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 where Wilcox J found that even if res judicata did not apply, having found that it did, his Honour stated:
…it certainly seems to fall within Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378…
The first respondent submits that it is open to the Court to infer, based on the history of the applicant's Court proceedings, that the present application has been brought by the applicant for the purpose of engaging in protracted litigation so that he can obtain bridging visa entitlements upon the continuance of judicial review proceedings. To use the Court's process for this collateral purpose is an abuse of process. I accept those submissions.
Further, the applicant seeks relief directed at the second Tribunal decision. This would be refused at the final hearing because it is futile and serves no legal purpose. The structure of the Act leaves the Minister and her delegates functus officio to make decisions by way of reconsideration, or further exercise of the power to grant or refuse visas, under s.65 of the Act, in circumstances where a merits review had been sought or obtained under Part 7 of the Act in relation to a protection visa application. The second Tribunal was self evidently correct in finding that the applicant had applied outside the 28 day period for the applications to the Tribunal, having applied over three years after he had deemed to be notified of the delegate's decision. There was no valid application before the Tribunal. The futility of litigation of the second Tribunal decision is such that the application is an abuse of process.
The first respondent submits that these proceedings should be dismissed as an abuse of process and I agree with that submission.
Conclusion
The application filed on 31 March 2006 must be dismissed on the ground that there is no reasonable prospect of success in prosecuting the proceedings. It is dismissed under r.13.10(a) of the Rules. The proceedings are frivolous and vexatious and dismissed under r.13.10(b). Finally, the proceedings are an abuse of process of the Court and dismissed under r.13.10(c).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 22 June 2006
3