SZJSU v Minister for Immigration
[2008] FMCA 863
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 863 |
| MIGRATION – Practice and procedure – summary dismissal of proceedings under Federal Magistrates Court Rule 13.10 – Anshun estoppel – abuse of process. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth), Part 8 Division 2 Federal Magistrates Court Rules 2001, Rule 13.10, 13.11 |
| SZJSU v Minister for Immigration & Anor [2007] FMCA 1393 SZJSU v Minister for Immigration & Citizenship [2007] FCA 1849 SZJSU v Minister for Immigration & Citizenship [2008] HCA 206 SZCTH v Minister for Immigration (No.1) [2004] FMCA 211 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192 NAIB v Minister for Immigration & Anor [2006] FMCA 1124 Ramsey v Skyring [1999] FCA 907 Walton v Gardiner (1993) 112 ALR 289 Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78 NALE v Minister for Immigration [2003] FMCA 366 |
| Applicant: | SZJSU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1259 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 16 June 2008 |
| Date of Last Submission: | 16 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| The Applicant did not attend |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed by the applicant on 16 May 2008 is dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) as an abuse of process.
The Court directs that no further application by the applicant for review of a decision of the Refugee Review Tribunal or of a delegate or of the Minister in any way relating to his Protection (Class XA) visa application filed 10 July 2006 be accepted for filing in this Court except with leave of the Court.
The Court directs that the Court registry be notified forthwith in accordance with Order 2 above.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1,360 payable within two (2) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1259 of 2008
| SZJSU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
The present application was filed in the Federal Magistrates Court on 16 May 2008, pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act), seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 31 October 2006, which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
On 29 May 2008 the first respondent filed a response seeking orders for summary dismissal of the applicant's application as an abuse of process, (the response), pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (the Rules) .
Background
The applicant was born on 10 June 1960. He claims to be a national of India, of Eihava ethnicity and of Hindu faith.
The applicant arrived in Australia on 28 May 2006 on an Indian passport issued in his own name.
The applicant lodged an application for a protection visa on 10 July 2006 on the basis that he was an active member of the Communist Party of India-Marxist (CPIM). Clashes occurred between the CPIM and the Muslim League and the applicant claimed he was targeted due to his position within the CPIM. The applicant claimed that during elections in 2001 a Muslim man was attacked and killed by members of the applicant's party and the Muslim League sought revenge for this death against the applicant and his party. The applicant claimed that he was attacked, beaten and told to leave by members of the Muslim League. The applicant claimed that he was told that people were planning to kill him and after one of his party members was stabbed, he left India due to his fears of persecution.
Litigation history
The further history of this matter is set out at paragraphs [4]-[13] of the affidavit of Saloni Kantaria filed on 12 June 2008, as corrected by her further affidavit tendered at the hearing before this Court on 16 June 2008 (the Kantaria affidavit).
On 2 August 2006 a delegate of the first respondent refused the protection visa application (Kantaria affidavit, pages 1-10).
On 25 August 2006 the applicant applied for review by the Tribunal of the delegate's decision. On 31 October 2006 the Tribunal affirmed the delegate's decision (Kantaria affidavit, pages 11-23).
On 22 November 2006 the applicant applied to the Federal Magistrates Court for judicial review of the first Tribunal decision. On 26 July 2007 Cameron FM dismissed the application for judicial review: SZJSU v Minister for Immigration & Anor [2007] FMCA 1393.
On 10 August 2007 the applicant filed a notice of appeal in the Federal Court. On 12 November 2007, Madgwick J dismissed the appeal: SZJSU v Minister for Immigration & Citizenship [2007] FCA 1849.
On 6 December 2007 the applicant filed an application for special leave to appeal to the High Court of Australia: proceedings S592 of 2007 (Kantaria affidavit at 50-51). On 24 April 2008 the application for special leave was dismissed by Kirby and Heydon JJ: SZJSU v Minister for Immigration & Citizenship [2008] HCA 206 (Kantaria affidavit at 50-51).
The proceedings before this Court
The applicant did not appear before this Court at the hearing on 16 June 2008. Ms Kantaria appeared for the first respondent. On that occasion, the Court dealt ex parte with the preliminary issue arising under the response.
Whether an abuse of process.
Rule 13.10 provides that:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The applicant claimed under ground 2 of his application of 16 May 2008 that the application is not vexatious or an abuse of process, as:
a Tribunal decision can be reviewed by the court a second time under certain circumstances: SZCTH v Minister for Immigration (No.1) [2004] FMCA 211.
I consider that SZCTH has no application to the current proceedings as it dealt with a situation where the delegate’s decision had not been reviewed by the Tribunal. As stated by Driver FM in this regard:
Not only has there been no merits review by the RRT but the RRT had no opportunity to consider any legal issues apart from jurisdiction. Prior to this application, it does not appear that the applicant has had any real opportunity to challenge the validity of the delegate's decision [13].
In my view, the applicant should be given the opportunity to argue his application at a final hearing insofar as it attacks the decision of the delegate [14].
In the present case, I consider that the Tribunal’s review of the delegate’s decision was a valid and final decision. Its decision has been the subject of judicial review by each of the Federal Magistrates Court, the Federal Court and the special leave application to the High Court. No jurisdictional error has been found following careful judicial scrutiny on each of these occasions.
As relevantly observed by Madgwick J in SZJSU at [18]:
[Cameron FM] was correct to dismiss the application. The appellant did not identify any jurisdictional error in the Tribunal’s decision. Nor could such an error be discerned.
Furthermore, as observed by Kirby and Heydon JJ in SZJSU in the special leave application at [1]-[3]:
The applicant is a citizen of India. The Refugee Review Tribunal upheld a decision of a delegate of the first respondent to refuse a protection visa. The applicant claimed to fear persecution on political grounds at the hands of the Muslim League because of involvement in the Communist Party (CPIM), and to have witnessed the murder of a friend by political opponents. The Tribunal found that the applicant’s connection with CPIM was too slight to make it credible that he had been targeted by the Muslim League, and did not find his evidence about the murder convincing.
The Federal Magistrates Court (Cameron FM) refused an application for judicial review: the Court found no substance in any of a wide variety of complaints. An appeal to the Federal Court of Australia (Madgwick J) was dismissed.
Nothing in the papers filed in support of the applicant's application for special leave to appeal to this Court suggests any error in the reasoning of the courts below.
An applicant is estopped in further proceedings from raising a ground of review that the applicant reasonably could have raised in previous proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356; Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192, NAIB v Minister for Immigration & Anor [2006] FMCA 1124 at [10]-[13].
In this regard, I have compared the matters raised by the applicant in his present application, and his statements in his affidavit of 16 May 2008, with those raised in the previous proceedings before this Court, the Federal Court and the High Court.
I consider that the applicant has provided no justification in the present proceedings for his commencing proceedings anew in the Federal Magistrates Court after the failure of his previous judicial review proceedings. I consider that all the matters now raised by the applicant before this Court are matters that were, or could by the exercise of reasonable care, have been previously raised, and which were, or could, have been decided in the previous proceedings.
I therefore consider that no special circumstances exist in the current proceedings that would warrant the Court declining to apply the Anshun estoppel principles in these circumstances.
It is also immaterial that the applicant may believe in the justice of his claims and may or may not understand that they have been authoritatively and finally rejected (cf Ramsey v Skyring [1999] FCA 907, Sackville J, at [56], quoting Toohey J in Jones v Skyring [1992] HCA 39, 66 ALJR 810 at 813).
As to whether the present proceedings constitute an abuse of process, the High Court in Walton v Gardiner (1993) 112 ALR 289 referred to the underlying public interest in the finality of litigation. It further held, at 298, that:
… proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail … proceedings before a court should be stayed as an abuse of process if… their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which has already been disposed of by earlier proceedings.
Also, in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242, the Full Federal Court, at [36] observed:
It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
I consider that the present application fits squarely within the description of a claim foredoomed to fail and one where the applicant is seeking to litigate anew a claim that has already been disposed of by a history of earlier proceedings and in which all rights of appeal have been exhausted. It is clear from the judicial history of the current proceedings, including the above-quoted observations by Madgwick J and Kirby and Heydon JJ, that the applicant has no prospects of success.
I consider that to allow the applicant to commence a further, and wholly unmeritorious, application before this Court would involve the resources of the community being expended in further litigation on a matter that has been now authoritatively and finally settled.
The Federal Court in Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78, held (at 85), that:
…the claim is an abuse of process because it is brought as a means of obtaining some advantage for which such proceedings are not designed or some collateral advantage beyond what the law offers.
I consider that it is open to the Court to draw the inference, in all the circumstances, that the applicant has instituted the present second application to this Court in order to use the Court’s process purely for the collateral purpose of extending his period of stay in Australia.
I consider that this collateral purpose constitutes an abuse of the process of this Court (and see NALE v Minister for Immigration [2003] FMCA 366 at [12]).
The relevant legal principles, where a repeated application for review of a delegate’s decision is made, are now well-settled and should be well-understood. Given the past chronology of this case, and where the applicant has brought a second wholly unmeritorious application before this Court, notwithstanding a final and definitive High Court decision, I am satisfied that the present proceedings constitute an abuse of the process of the Court. In these circumstances, I consider that appropriate orders should be put in place to ensure that the Court’s process is not further abused in the future.
For the above reasons, I am satisfied that the present proceedings should be summarily dismissed under Rule 13.10(c) of the Rules as being an abuse of process.
Conclusion
The order sought by the first respondent that the Court dismiss the application under Rule 13.10(c) as being an abuse of process is upheld.
The application filed on 16 May 2008 is dismissed pursuant to Rule 13.10(c) of the Rules as an abuse of process. The Court makes the following consequential orders:
·The Court directs that no further application by the applicant for review of a decision of the Refugee Review Tribunal or of a delegate or of the Minister in any way relating to his Protection (Class XA) visa filed 10 July 2006 be accepted for filing in this Court except with leave of the Court.
·The Court directs that the Court registry be notified forthwith in accordance with the above order.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 27 June 2008
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