SZKIR v Minister for Immigration - [2008] FMCA 977

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKIR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 977

MIGRATION – Protection (Class XA) visa – practice and procedure – Anshun estoppel – summary dismissal of proceedings under Federal Magistrates Court Rule 13.10 – 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

SZKIR v Minister for Immigration & Anor [2007] FMCA 1335
SZKIR v Minister for Immigration & Citizenship [2007] FCA 1786
SZKIR v Minister for Immigration & Citizenship [2008] HCASL 247
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
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78
NALE v Minister for Immigration [2003] FMCA 366

Applicant:

SZKIR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1457 of 2008

Judgment of:

Orchiston FM

Hearing date:

30 June 2008

Date of Last Submission:

30 June 2008

Delivered at:

Sydney

Delivered on:

21 July 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application for an order to show cause filed by the applicant on

6 June 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 signed on
30 January 2007 or for a review of the decision of the delegate of the first respondent dated 29 September 2006, or for review of any other administrative decision or action by any person or Tribunal relating to the application by the applicant for a Protection (Class XA) visa received on 3 July 2006, shall 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 pay the First Respondent’s costs fixed in the sum of $1,800 payable within two (2) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1457 of 2008

SZKIR

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

6 June 2008, being an application for an order to show cause under r.44.06 of the Federal Magistrates Court Rules 2001 (Cth) (the Rules), in regard to the decision of the Refugee Review Tribunal (the Tribunal) signed on 30 January 2007, 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.
The first respondent filed a response opposing the application for an order to show cause on the grounds that that the Court lacks jurisdiction to hear the application under Rule 44.06(2)(a), or in the alternative, that the present proceedings are an abuse of process and should be dismissed pursuant to Rule 13.10(c) of the Rules.

Background

The applicant was born on 13 July 1967. He claims to be a national of India and of Islamic faith.
The applicant arrived in Australia on 23 May 2006 on an Indian passport issued in his own name.
The applicant lodged an application for a protection visa on 3 July 2006 on the basis that he suffered persecution for his membership of a particular social group, his political opinion and his Muslim religion.
On 29 September 2006 a delegate of the first respondent refused the protection visa application.

Litigation history

The applicant applied for review by the Tribunal of the delegate's decision. On 30 January 2007 the Tribunal affirmed the delegate's decision.
On 14 March 2007 the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. On 16 July 2007, Cameron FM dismissed the application for judicial review: SZKIR v Minister for Immigration & Anor [2007] FMCA 1335.
The applicant filed a notice of appeal in the Federal Court.

On 20 November 2007, Collier J dismissed the appeal: SZKIR v Minister for Immigration & Citizenship [2007] FCA 1786.
The applicant sought special leave to appeal to the High Court of Australia (proceedings no. S615/2007). On 15 May 2008, Hayne and Crennan JJ dismissed the application for special leave: SZKIR v Minister for Immigration & Citizenship [2008] HCASL 247.

The proceedings before this Court

I refer to paragraphs 1 and 2 above in regard to the present application and response.
The applicant appeared in person before this Court on 30 June 2008 with the assistance of a Tamil interpreter. Ms Warner-Knight appeared for the first respondent. The Court dealt on that occasion with the preliminary issue arising under the response.

Whether application is 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.
I consider that the Tribunal decision was a valid and final decision reviewing the delegate’s decision. That 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.
Collier J in SZKIR v Minister for Immigration & Citizenship [2007] FCA 1786 rejected the applicant's grounds of appeal from the decision of Cameron FM, as well as other grounds of appeal raised by the applicant for the first time. Her Honour found that there was no ground for concluding that the decision of the Tribunal was infected with jurisdictional error.
In dismissing the special leave application to the High Court, Hayne and Crennan JJ observed:
The applicant's draft notice of appeal and the written case are formulaic. The applicant has not identified any question of law which would justify a grant of special leave to appeal. There is no reason to doubt the correctness of the decision of Collier J.
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 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 in which 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 history of judicial review of the current proceedings, including the above-quoted observations by Hayne and Crennan 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 litigation history 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.
Given this determination, it is unnecessary for the Court to consider the alternative ground raised by the first respondent in the response.

Conclusion

The Court orders that the application for an order to show cause filed by the applicant on 6 June 2008 be dismissed pursuant to Rule 13.10(c) of the Rules as an abuse of process.
The Court also makes the following consequential orders:
·that no further application by the applicant for review of a decision of the Refugee Review Tribunal signed on 30 January 2007 or for a review of the decision of the delegate of the first respondent dated 29 September 2006, or for review of any other administrative decision or action by any person or Tribunal relating to the application by the applicant for a Protection (Class XA) visa received on 3 July 2006, shall be accepted for filing in this Court except with leave of the Court.
·the Court Registry be notified forthwith in accordance with the above order.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 21 July 2008