SZIQR v Minister for Immigration & Anor - [2006] FMCA 1193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1193

MIGRATION – Refugee – application for review to the Tribunal not valid – Tribunal functus officio – Tribunal lacked jurisdiction – no reasonable cause of action – abuse of the process of the Court – application dismissed.

Migration Act 1958, ss.66(1), 66(2), 412, 425
Migration Regulations 1994, Regulation 2.26(1)(c)(i)
Federal Magistrates Court Rules 2001, rr.13.10, 13.10(a), 13.10(b), 13.10(c), 16.05

SZBWF v Minister for Immigration [2004] FMCA 83
SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959
Xie v Immigration Department [1999] FCA 365
Applicant A175/2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 829
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Kosi vMinister for Immigration [2003] FMCA 340
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301
Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
Walton v Gardiner (1993) 177 CLR 378
SZBJM vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404

Applicant:

SZIQR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1060 of 2006

Judgment of:

Nicholls FM

Hearing date:

14 August 2006

Date of Last Submission:

18 July 2006

Delivered at:

Sydney

Delivered on:

14 August 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms. S. Zarucki

Solicitors for the Respondents:

Clayton Utz

ORDERS

The first respondent’s name be amended to read “Minister for Immigration & Multicultural Affairs”.
The application is dismissed.
No further application for review of the decision of the Refugee Review Tribunal made on 10 March 2003 and handed down on

12 March 2003, and for review of the decision of the respondent Minister’s delegate dated 10 April 2001, or for review of any notification of these decisions, shall be accepted for filing without leave of the Court.
The applicant pay the first respondent’s costs set in the amount of $2,500.
The first respondent’s solicitors write to the applicant, by way of registered post within 7 days, advising the applicant of the orders made today and of Rule 16.05 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1060 of 2006

SZIQR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

I have before me an application filed in this Court on 7 April 2006, in effect, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 March 2006 that found the Tribunal did not have jurisdiction to review a decision of the respondent Minister’s delegate made on 10 April 2001 to refuse a protection visa to the applicant.
The Minister’s response filed on 1 June 2006, and outline of submissions filed on 18 July 2006, seek summary dismissal of the application on the basis that no reasonable cause of action is disclosed and in the alternative that the application is an abuse of process and the proceedings are vexatious.
From the material before the Court it is clear that the Minister’s response is grounded in the following sequence of events:
1)The applicant applied (to the Minister’s Department) for a protection visa on 12 January 2001, which was refused on
10 April 2001.
2)The applicant sought review of the delegate’s decision by the Tribunal on 3 May 2001 and the Tribunal, differently constituted, affirmed this decision on 19 February 2003.
3)The applicant then unsuccessfully sought judicial review of the Tribunal’s decision. He lodged a further application for review of the same decision of the delegate on 9 December 2005.
I note further the affidavit of Andrea Maree Mansour, a solicitor in the employ of the respondent’s solicitors, sworn on 22 May 2006. Paragraphs 2 to 13 of her affidavit outlines the relevant history in this matter:
“First Refugee Review Tribunal Proceedings
2.On 10 April 2001 a delegate of the First Respondent made a decision in relation to the Applicant (“Delegate’s Decision”).
3.On 19 February 2003, the Refugee Review Tribunal (“Tribunal”) affirmed the Delegate’s Decision and handed down its decision on 12 March 2003 (“first Tribunal Decision”). Annexed to my affidavit and marked “A” is a copy of the first Tribunal decision.
Federal Court Proceedings N435 of 2003
4.On 7 April 2003, the Applicant filed in the Federal Court of Australia an application for review of the first Tribunal decision. Annexed to my affidavit and marked “B” is a copy of that application for review.
5.Annexed to my affidavit and marked “C” is a copy of the reasons for judgment and the Order made by Hely J on 17 June 2003.
Federal Court Proceedings N 795 of 2003
6.On 4 July 2003, the Applicant filed a notice of appeal in the Federal Court of Australia. Annexed to my affidavit and marked “D” is a copy of that notice of appeal.
7.Annexed to my affidavit and marked “E” is a copy of the reasons for judgment and the Order made by Sackville, Selway and Lander JJ on 26 November 2003.
High Court Proceedings – Special Leave Application
8.On 17 December 2003, the Applicant filed an application for special leave to appeal in the High Court of Australia. Annexed to my affidavit and marked “F” is a copy of that application for special leave of appeal.
9.On 27 April 2005, the Applicant’s application for special leave to appeal was dismissed. Annexed to my affidavit and marked “G” is a transcript of the reasons for judgment of Justice McHugh and Justice Heydon dated 27 April 2005.
Federal Magistrates Court Proceedings – CAG 25 of 2005
10.On 24 May 2005, the Applicant filed an application for review of the first Tribunal Decision in the Federal Magistrates Court of Australia. Annexed to my Affidavit and marked “H” is a copy of that application.
11.On 11 November 2005, his Honour Federal Magistrate Mowbray dismissed the Applicants’ application having found that no jurisdictional error attended the First Tribunal decision. Annexed to my affidavit and marked “I” is a copy of his Honour’s reasons for judgment.
Second Refugee Review Tribunal Proceedings
12.On 9 December 2005, the Applicant applied again to the Tribunal for review of the Delegate’s Decision. On 10 March 2006, the Tribunal made a decision in relation to the Applicant, the decision the subject of these proceedings (“The second Tribunal’s decision”). Annexed to my affidavit and marked “J” is a copy of the second Tribunal’s decision dated 10 March 2006.
Federal Magistrates Court Proceedings SYG 1060 of 2006
13.On 7 April 2006, the Applicant applied to the Federal Magistrates Court of Australia for judicial review of the second Tribunal decision. Annexed and marked “K” is a copy of that application.”
For the applicant I also have before me his affidavit made on 7 April 2006, which attaches a copy of the Tribunal’s decision.
The material before me now shows that the Tribunal identified the critical question as being whether it had jurisdiction to review the delegate’s decision made on 10 April 2001, on the basis of the validity of the application for review lodged on 9 December 2005. In its decision record (see Annexure “J” to the affidavit of Ms. Mansour) the Tribunal noted that it had formed a preliminary view that it did not have jurisdiction on the basis that the delegate’s decision in question had already been reviewed, and because the current (second) application for review was received by the Tribunal outside the prescribed time limit. It noted that it had written to the applicant on
16 January 2006 inviting his submissions on these issues, and that the applicant responded by letter dated 6 February 2006.
The Tribunal's “Findings and Reasons” for its decision are at pages 3 to 4 of its decision record at annexure “J” of Ms. Mansour’s affidavit. The Tribunal found that:
1)It was satisfied that the content of the notice of the delegate’s decision to the applicant complied with the requirements of s.66(2) of the Migration Act 1958 (“the Act”).
2)In circumstances where the applicant had indicated to the Minister’s Department that he wanted all correspondence to be sent to his adviser, it was satisfied that the copy of the notice sent to the applicant’s adviser complied with s.66(1) of the Act and Regulation 2.26(1)(c)(i) of the Migration Regulations 1994 (“the Regulations”) (as in force at the relevant time).
3)The delegate’s decision was sent within 3 days to the “correct” address. The applicant was therefore taken to have received the notice on 17 April 2001, and the 28 day period within which the review application was lodged ended on 15 May 2001.
The Tribunal concluded that the application for review was not received until 9 December 2005, which is clearly after the prescribed period had expired.
4)The review application was not valid and the Tribunal had no jurisdiction to review the delegate’s decision.
5)Further, as it had already discharged its functions under the Act to review the delegate’s decision of 10 April 2001, it no longer had jurisdiction in relation to that decision.
In all the circumstances, the Tribunal found that it had already discharged its statutory function to review the delegate’s decision and the current application for review was out of time. Therefore the Tribunal did not have jurisdiction to review the current application.
In his application before me now the applicant puts forward the following grounds of review:
“1.That the decision of the tribunal incurs a jurisdictional error by violating the duty it was under in satisfying itself as to eligibility of my protection visas.
2.That the decision of the tribunal made a jurisdictional error by denying my hearing rights before the tribunal. The tribunal did not provide me an opportunity to put forward my case as required.
3.That the tribunal made denial of natural justice by depriving my hearing rights before the honourable member.”
The applicant did not appear before me today. Ms. Zarucki appeared for the respondent Minister. I note in this regard that at the first Court date in this matter on 2 May 2006, the applicant did not appear. Nonetheless, I note from the Court file that on 1 May 2006 (the day before the first Court date) a medical certificate was sent by facsimile transmission to the Court, which states that the applicant was examined by a doctor on 1 May 2006. The doctor’s opinion was that the applicant was suffering from a “back” and “leg injury” and that he would be “unfit for work/study up to and including 1 May 2006 to 31 May 2006”. At the first Court date the respondent Minister’s representative foreshadowed an interlocutory application (seeking summary dismissal). This matter was then listed on 14 August 2006.
Orders were also made concerning the conduct of the litigation. Importantly, (Order 12) directed the first respondent to notify the applicant of the orders made that day. In this regard, Ms. Zarucki tendered a letter addressed to the applicant and dated 2 May 2006 notifying him of the orders made in his absence and of the date of today’s hearing (being 14 August 2006). This letter was marked as “Respondent’s Exhibit 1”. The letter enclosed short minutes of order, and indicated that if the applicant did not attend at the hearing, his application to the Court could be dismissed with costs.
Before me today the applicant did not appear. Further, Ms. Zarucki submitted that the applicant had made contact with the respondent’s solicitors on 4 August 2006, and indicated by telephone that he was “sick” and would be unable to attend the hearing. She tendered a letter dated 10 August 2006 addressed to the applicant. The letter makes reference to his telephone call, and to two (attached) medical certificates sent by the applicant to the respondent’s solicitors indicating that he is “unfit for work/study effective from 8 August 2006 to 30 September 2006”. The respondent’s solicitors confirmed the date of the hearing, and their instructions to oppose any request for an adjournment. This was said to be on the basis of “the history” of “prior judicial proceedings”, that the application disclosed no reasonable cause of action, was vexatious and/or an abuse of processes, and that any such adjournment would “unnecessarily delay” resolution of the matter. The respondent’s letter also indicated to the applicant that, if he was unable to attend Court, it may be possible for him “to participate in the hearing by telephone”. This letter, including enclosed medical certificates, was tendered and marked as “Respondent’s Exhibit 2”.
No formal application for an adjournment has been put before the Court.
In my view, circumstances are such that it was open to the applicant to at least attempt to seek an adjournment from the Court. It appears that on the previous occasion the relevant medical certificate was at least sent to the Court. Not even that has occurred on this occasion. Nonetheless, even if such application could be inferred from what has been put before the Court, I cannot see that any useful purpose would be served by further delaying the conclusion of this matter.

The respondent sought that the matter proceed today and be dismissed, despite the applicant’s absence, (pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001) in circumstances where the Court cannot be satisfied, on what has been put before it, that the applicant has provided a satisfactory explanation as to his inability to participate in a hearing. This was with particular reference to the opportunity offered to the applicant to participate by way of telephone, which is consistent with what is said to be the applicant’s medical condition (“back injury”) and without any evidence to suggest that he would not be able to participate by telephone.
I also accept the respondent’s submissions that the matter should be brought to finality today as no reasonable cause of action has been disclosed in the application. Further, I cannot see on what is before me that the applicant has any reasonable prospect of successfully prosecuting these proceedings.

In all therefore, it is not appropriate to grant any adjournment (even if one had been requested) as in particular the application before the Court would not in my view succeed in any event.
The respondent submitted that there is no reasonable basis for the present application before the Court as the applicant’s case is “so clearly untenable that it cannot possibly succeed” (with reference to SZBWF v Minister for Immigration [2004] FMCA 83; SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959). The respondent also submitted that the applicant’s application is doomed to failure if the case were to be tried in the ordinary way (Xie v Immigration Department [1999] FCA 365 and Applicant A175/2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 829). Further, the respondent argued that, on the whole, there is no real question to be tried (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 and Kosi vMinister for Immigration [2003] FMCA 340).
Ms. Zarucki for the respondent also submitted, alternatively, that the Tribunal found correctly that it lacked jurisdiction to review the applicant’s application pursuant to s.412 of the Act. Further, the submission was that the Tribunal was functus officio, in that under the Act there was no “further function” for it to conduct a second review (see Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 311). Therefore, the Tribunal correctly found that it lacked jurisdiction to review an already validly reviewed delegate’s decision.
In relation to the complaints contained in the applicant’s application to this Court:
1)The applicant has not provided particulars as to how he was denied natural justice.
2)I cannot see any error in the Tribunal’s decision that it lacked jurisdiction to review the applicant’s application. Further, I cannot see that the applicant was denied his “hearing rights” as he was given the opportunity to make submissions, which he did, before the Tribunal made its decision. I accept the respondent’s submissions that the Tribunal was under no obligation to invite the applicant to a hearing, in these circumstances, pursuant to s.425 of the Act.
3)The applicant has not provided any evidence to show that the Tribunal “ignored the merits” of the applicant’s claims as they relate to the threshold issue of jurisdiction or denied him procedural fairness. In this regard if the applicant means by this that he was denied an opportunity to put forward at a hearing the merits of his refugee claims, then the applicant had already received this opportunity before the Tribunal (differently constituted) in relation to his application for review of 3 May 2001 (see Annexure “A” to the affidavit of Ms. Mansour).
In all therefore, the applicant applied for a protection visa some five years ago. This was refused. He sought review by the Tribunal. He was unsuccessful. Four Federal Court Judges (3 on appeal) could find no error of law in what the Tribunal had done. The applicant then sought special leave to appeal to the High Court. This was refused. Undeterred, the applicant then sought judicial review by this Court. Unsurprisingly, given the history, Mowbray FM found the Court lacked jurisdiction to hear the application. The applicant then sought to again agitate his refugee claims before the Tribunal. The Tribunal found it lacked jurisdiction on two bases: that it had already discharged its function to review the relevant delegate’s decision and that, in any event, this “second” application was out of time. Having reached this point it was simply not open to the Tribunal to proceed to review the delegate’s decision for a second time. In all the circumstances, nothing that the applicant has now put forward in his application reveals a reasonable cause of action or any prospect, let alone a reasonable one, of successfully prosecuting his claims. Nor can I see anything else in the material before me to suggest otherwise. The application is dismissed.
The respondent also argued (in the alternative) that the present proceeding is also an abuse of process pursuant to Rule 13.10 of the Rules. In this regard, the respondent submitted that there is no arguable basis for any of the grounds raised by the applicant and in any event his litigation history of bringing repeated applications before the Courts discloses that the proceedings are vexatious.
I should indicate for the applicant's benefit as to whether the present proceedings are an abuse of process. The repeated bringing of similar applications where it would be vexatious or oppressive is an abuse of process.

The respondent, in submissions, has referred to Wilcox J. in Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 where his Honour found that res judicata applied in that case, but then went on to observe [18]-[19]:
“If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle if that be correct, 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.”
I note the case of Walton v Gardiner (1993) 177 CLR 378, 393 and their Honours Mason CJ and Deane and Dawson JJ, at [22]:
“Yet again, proceedings before the Court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”

I indicate for the applicant's benefit that there is a clear underlying public interest that there be finality in litigation, and that a party (the Minister) should not be repeatedly vexed in the same matter, which in the present circumstances clearly derive from the applicant’s application for a protection visa made on 12 January 2001. In this regard, the respondent has referred me to Madgwick J. in SZBJM vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 at [29]-[30]:
“Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way with legal advice to a Full Court of this Court and thereafter, it seems without such advice, to the High Court, it is high time that all this litigation was put to an end.”
While the applicant has now brought a “second” Tribunal decision to this Court, it is clearly in circumstances where the decision he now seeks to have reviewed derives from the same delegate’s decision which has been the subject of merits review previously, and in circumstances where the previous decision by the Tribunal was subject to considerable judicial review all the way to the High Court. The applicant has not put forward a complaint about the Tribunal’s decision on its lack of jurisdiction, but appears to assert (without any basis) that the Tribunal should have satisfied itself of his “eligibility of my protection visas” (that is, reheard his refugee claims).
In these circumstances, I find separately that the current proceedings to be an abuse of process. In any event, the application is dismissed.
The respondent also pressed that an order be made preventing the applicant from filing a further application for review, both of the decision of the Refugee Review Tribunal made on 10 March 2003, and of the decision of the respondent Minister’s delegate dated 10 April 2001, or of any notification of these decisions. In all the circumstances, particularly given the extensive litigation history, this is clearly appropriate. Accordingly, I make the orders as sought by the respondent first respondent.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 02 November 2006