SZLCW v Minister for Immigration & Anor
[2007] FMCA 1663
•13 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLCW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1663 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal functus officio – proceedings an abuse of the process of the Court – costs – costs higher than scale costs awarded. |
| Federal Magistrates Court Rules rr.13.10, 44.12 |
| Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor (1997) 76 FCR 301 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 |
| Applicant: | SZLCW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2328 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 13 September 2007 |
| Date of Last Submission: | 13 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2007 |
REPRESENTATION
| The applicant was represented by her husband |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Pursuant to r.13.10 of the Rules of Court the application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2328 of 2007
| SZLCW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The matter is before the Court today on the applicant's application that the respondent show cause why relief should not be granted to her. The applicant is represented today by her husband as it appears that the solicitor who had initially been retained by the applicant is no longer retained. He has never filed a notice of appearance or notice of address for service in these proceedings.
An order to show cause will not be made if the applicant does not have an arguable case. Issues also arise in the circumstances of these proceedings whether they may be an abuse of process. Consequently it is possible that the proceedings may be dismissed pursuant to r.44.12 on the basis that there is no arguable case. Pursuant to r.13.10 the proceedings may be summarily dismissed if they have no reasonable prospects of success, are frivolous or vexatious or are an abuse of the process of the Court.
Turning first to whether there is an arguable case. The authorities demonstrate that an application should not be dismissed under r.44.12 unless the lack of a cause of action is clearly demonstrated, the claim is clearly groundless or there is a high degree of certainty about the outcome of the proceedings. In the circumstances of this case the chronology which appears in the first respondent's submissions and which is based on the evidence contained in the affidavit of Alissa Maree Crittenden sworn 29 August 2007 is instructive and I set it out as follows:
(a)on 25 June 1997 the Minister's delegate refused the applicant's application for a protection visa;
(b)on 15 June 1998 or alternatively 11 June 1998, which is the date referred to in the decision of the Refugee Review Tribunal (“Tribunal”) currently under review, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa;
(c)on 23 November 2004 Barnes FM dismissed the applicant's application for judicial review;
(d)on 15 April 2005 Stone J dismissed the applicant's application for an extension of time to file and serve a notice of appeal;
(e)on 30 August 2005 the applicant's application for special leave to appeal to the High Court was dismissed;
(f)on 22 September 2005 the applicant filed an application for judicial review of the Tribunal's decision in the Canberra Registry of this Court, the original proceedings in this Court having been bought in the Sydney Registry;
(g)on 23 March 2006 Mowbray FM dismissed the applicant's application for judicial review;
(h)on 1 August 2006 Stone J was presented for a second time with proceedings brought by the applicant and she dismissed the applicant's application for leave to appeal;
(i)on 22 May 2007 the High Court dismissed the applicant's application for special leave to appeal;
(j)on 13 June 2007 the applicant applied for a second time to the Tribunal for review of the delegate's decision,
(k)on 5 July 2007 the second Tribunal determined that it did not have jurisdiction to review the delegate's decision; and
(l)on 27 July 2007 the applicant filed the application which commenced these proceedings.
Although the applicant is not present in person today, through her husband she has nevertheless filed in Court today written submissions with eight numbered paragraphs. These have been addressed in some detail by the Minister's solicitor today. Notwithstanding the detail raised by the applicant and addressed by the Minister's representative, the issue really turns on whether the Tribunal had jurisdiction to consider the application which was before it. Everything rises and falls on the determination of that point.
An important element of background to the determination of that issue is the fact that in the applicant's application for review, which was received by the Tribunal on 13 June 2007, judging by the receipt stamp appearing at page 1 of the Court Book, the delegate's decision in respect of which review was sought was the one of 25 June 1997. That is to say, the review which the applicant sought was not a review of a second decision of the delegate but, rather, a further review of the delegate's decision and a review additional to one which had already been undertaken some years before.
In this case the applicant's application is certain to fail because the Tribunal did not have jurisdiction to consider for a second time the applicant's application for review of the delegate's decision. So much is made clear by the decision of Goldberg J in Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 and also by the decision of Moore J in SZASP v Minister for Immigration & Citizenship [2007] FCA 771.
The applicant has submitted that there has been a change of circumstances at some point in the long history of her application for a protection visa. However, the issue before the Tribunal was primarily whether or not it had jurisdiction to consider the application. If it had no jurisdiction then the question of any changed circumstances simply did not arise and I find that the Tribunal did not have jurisdiction.
Regardless of whether the applicant's application is arguable or not, there arises the question of whether these proceedings are an abuse of the process of the Court. That issue was considered by Moore J in SZASP's case. In [4] of his Honour's decision it is clear that his Honour was there dealing, amongst other things, with an application which is similar to these proceedings, namely an applicant who had sought the Tribunal undertake a second review of the delegate's decision. His Honour concluded that the Tribunal had no jurisdiction, as I have already recorded.
It is also worth noting that at [22] of that decision that his Honour concluded that each of the proceedings then before him, including the one where the applicant was seeking judicial review of the Tribunal's conclusion that it had no jurisdiction to review the delegate's decision for a second time, was an abuse of the process of the Court. Similarly here. These proceedings are an abuse of the process of the Court. Consequently they will be dismissed pursuant to r.13.10.
As the applicant has been unsuccessful in the proceedings the Minister has sought an order for costs. Though the scale costs for a show cause hearing such as this are $2,500, the Minister has sought an order in the amount of $3,500. I am advised by Ms Kantaria on behalf of the Minister that up until today the Minister's solicitor and client costs were in the order of $4,000 and that together with the appearance today and unavoidable communications with the solicitor who had previously been acting for the applicant, the Minister's costs have escalated to an amount in the order of $4,800 to $4,900. In my view, given the circumstances and my finding that the proceedings were an abuse of the process of the Court I see no reason not to award the amount sought by the Minister. Certainly there is nothing in the conduct of these proceedings which would suggest that the Minister should not have an order for his costs.
The persistent nature of the proceedings being brought by the applicant satisfies me that if the Minister has incurred additional costs beyond those provided by the scale, in circumstances where these proceedings are an abuse of the process of the Court, then it is appropriate that the costs awarded to him properly represent such expenses.
Notwithstanding the fact that the Minister has expended an amount approaching $5,000 he has only sought an order for $3,500. I am satisfied that that is a reasonable amount to award, given the Minister's expenses and doubly so given the fact that he has been required to address these proceedings.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 17 October 2007
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