SZURV v Minister for Immigration
[2017] FCCA 2702
•27 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZURV v MINISTER FOR IMMIGRATION | [2017] FCCA 2702 |
| Catchwords: MIGRATION – Judicial review of refusal by the Department of Immigration and Border Protection to accept application for a protection visa because the applicant had previously made a valid application for a protection visa – applicant accepts that grounds on which he challenges the refusal are based on grounds that have already been decided in a way adverse to the applicant – applicant formally submits the other decisions are incorrect but otherwise agrees that application should be dismissed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C Migration Act 1958 (Cth), s.48A |
| BVJ16 v Minister for Immigration and Border Protection [2017] FCC 178 BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 CFA16 v Minister for Immigration and Border Protection [2017] FCCA 278 De Pardo v Legal Practitioners Complaints Committee [2000] FCA 355 Jeffery & Katauskas Pty Limited v SST Consulting Pty Limited [2009] HCA 43 SZURV v Minister for Immigration and Border Protection [2016] FCA 1371 |
| Applicant: | SZURV |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2239 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 27 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2017 |
REPRESENTATION
| No appearance by or on behalf of the applicant. |
| Solicitors for the Respondent: | Mr A Markus of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs set in the amount of $3,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2239 of 2016
| SZURV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Before the Court today is an application for judicial review arising out of a letter dated 11 August 2016 sent by an officer of the Department of Immigration and Border Protection to the applicant. That letter was written in response to the applicant lodging what purported to be an application for a protection visa. The letter stated that, because of s.48A of the Migration Act 1958 (Cth), the application was not a valid application for a protection visa, because the applicant had previously applied for a protection visa.
The application that is before me contends that the notification contained in that letter gives rise to the relief which is being sought in the application because it is contended that the previous application for a protection visa, to which the letter referred, was an invalid application for a protection visa and, therefore had no legal effect. There are two grounds in the application in support of the contention that the previous application for a protection visa was invalid.
The applicant is legally represented in these proceedings and the applicant, through his solicitor, has filed written submissions. I will refer to these in a moment. However, when the matter was called, there was no appearance on behalf of the applicant, or by the applicant. As I deliver these reasons for judgment, it is 11.05 am and there has not been any appearance on behalf of the applicant. In those circumstances Mr Markus, who appears for the respondent (Minister) submitted that I should deal with the matter substantively, rather than dismiss the matter for non-appearance pursuant to r.13.03C of the Federal Circuit Court Rules 2001.
Mr Markus brought to my attention that there were two distinct grounds stated in the application, but it did not appear that ground 1 was being pressed and indeed, it appeared to have been abandoned. The first question I need to consider is whether both grounds are pressed or only the second ground. The answer to that lies in the written submissions that have been filed on behalf of the applicant. In paragraph 2 of those submissions it is stated that the “question of law at the heart of the Applicant’s case has already been ruled upon by this Court” in BVJ16 v Minister for Immigration and Border Protection [2017] FCC 178. The submissions also referred to the same argument having been rejected by this Court in a different decision, and that is CFA16 v Minister for Immigration and Border Protection [2017] FCCA 278. Although not referred to in the applicant’s submissions, the Minister, in his submissions, refers to the judgment of Burley J of the Federal Court of Australia in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205, which dismissed an appeal raising materially the same issues as were determined adversely to the applicant in each of the two cases decided by this Court to which I have referred.
If I may return to the applicant’s written submissions, having referred to the two previous judgments of this Court dealing with what the submissions accept are identical, or at least materially, similar issues. The submissions conclude as follows:[1]
As a result, the Applicant submits that it is sufficient for this Court to dismiss the present proceeding and, as a notation to the orders or in brief reasons for judgment, to note that the Applicant’s case on judicial review turns on the same question decided by the Court in BVJ16 as well as CFA16 and the Applicant has formally submitted that BVJ16 and CFA16 were wrongly decided. This will then leave the Applicant scope to appeal to the Federal Court from the judgment of this Court, without depriving the Applicant of the opportunity to submit in the Federal Court that BVJ16 and CFA16 were wrongly decided.
[1] Submissions for the Applicant, [4]
I am satisfied, on the basis of the applicant’s submissions, that his position, as communicated in those submissions, is that the appropriate course for me to take in relation to the grounds stated in the application is to dismiss the proceeding and note the matters set out in paragraph 4 of those submissions. It should be taken that by my setting out what was said in paragraph 4 of the applicant’s submissions, I have noted that the applicant submits that the decisions of BVJ16 and CFA16 were wrongly decided. It follows, therefore, that to the extent ground 1 raises an issue that is different from the issues that were considered by this Court in BVJ16 and CFA16, that ground is abandoned, and I will treat it as having been abandoned. That means that I will shortly make an order dismissing the application, having regard to what is contained in those written submissions.
Mr Markus, however, referred me to an additional issue. Mr Markus submits that this proceeding is an abuse of process. The abuse is said to arise from the fact that the same applicant, when also legally represented, applied to the Court making the very same contention that he makes in this proceeding, namely, that his previous protection visa application was invalid. Mr Markus noted that the applicant in the previous proceeding maintained that contention, but relied on a different ground. That contention was rejected by a judge of this Court in SZURV v Minister for Immigration and Border Protection [2016] FCA 1371. Mr Markus contends that it is an abuse of process to commence proceedings to make the same contention previously made in a previous proceeding, which was decided against an applicant, but now on new grounds. Having regard to the fact that the applicant is not present in Court, and to the circumstances in which the submission is made, I do not propose to make any finding about whether this application before me is an abuse of process.
However, it is appropriate that I do say something about abuse of process, because on its face, an applicant who has failed in a contention in a previous proceeding, raising a particular ground, who makes the same contention in a fresh proceeding, but on a different ground, does, at the very least, give rise to the possibility of an abuse of process. That requires me to say something about abuse of process. And it is sufficient here that I refer to and quote from what the High Court said about abuse of process in the decision of Jeffery & Katauskas Pty Limited v SST Consulting Pty Limited [2009] HCA 43. This is not the only case in which the High Court has considered the issue of an abuse of process. First I will refer to what the plurality said constitutes an abuse of process. In paragraph 27 of their Honours’ reasons, the plurality identifies various categories of case which constitute an abuse of process, and these are:
a)proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
b)proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
c)proceedings which are manifestly groundless or without foundation or which serve no useful purpose; and
d)multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.
The plurality then noted that the term “abuse of process”, as used in Australia today, is not limited by these categories. Their Honours referred to the High Court having said repeatedly in its judgments that the categories of abuse of process are not closed, and that “courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people””.[2]
[2] [2009] HCA 43 at [28]
There is another aspect about abuse of process that I believe may warrant some comment, and that relates to the responsibilities of lawyers who act for parties who have commenced or maintain a proceeding which is an abuse of process. The High Court’s observations to which I have referred about the powers of the Court to prevent misuse of its procedures may well be wide enough to deal with any failure by a lawyer to have regard to his professional duties to the extent that that lawyer advises or participates in a proceeding which is an abuse of process. In any event, the Federal Circuit Court, being a Court of limited jurisdiction, has an implied incidental power to regulate its proceedings. That extends to regulating the conduct of legal practitioners who appear before it. That point in relation to the Federal Court was made by French J as his Honour then was in the Federal Court in De Pardo v Legal Practitioners Complaints Committee [2000] FCA 355. His Honour there said that the implied incidental power of the Federal Court includes the power to “regulate the conduct of legal practitioners appearing before it to the extent necessary to ensure the observance of their duties to the court and the integrity of its procedures”. The source of this power was described by his Honour as follows:[3]
Like the power of the court to punish for contempt, even if such power is not to be found in some express statutory provision, it has its source in Chapter III of the Constitution. Like the power to deal with contempts, it is “inherent” and is “a power of self-protection or a power incidental to the function of superintending the administration of justice.”
[3] [2000] FCA 355 at [53]
Now, my making these observations is not to be understood as in any way suggesting that any lawyer that has been representing the applicant has participated in any breach of his or her duties or has incited a proceeding which is an abuse of process. My only point in making these observations is to bring to the forefront the need for lawyers who advise litigants in the conduct of proceedings of what their professional responsibilities are. In any event, I do not propose to say anything further about that issue.
I then return to relief. It follows from what I earlier said when I referred to and considered the applicant’s submissions, that the proceeding should be dismissed; and I propose to make that order.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 3 November 2017
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