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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - RRT decision the subject of two previous applications in the Federal Court which were dismissed at the interlocutory stage - application dismissed as an abuse of process.

SZCVO v Minister for Immigration [2004] FMCA 603 (13 September 2004)

SZCVO v Minister for Immigration [2004] FMCA 603 (13 September 2004)
Last Updated: 27 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVO v MINISTER FOR IMMIGRATION
[2004] FMCA 603



MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - RRT decision the subject of two previous applications in the Federal Court which were dismissed at the interlocutory stage - application dismissed as an abuse of process.



Federal Magistrates Court Rules 2001 (Cth)

Chu v Minister for Immigration (1997) 78 FCR 314

Johnson v Gore Wood & Co (2002) 2 AC 1

NALE v Minister for Immigration [2003] FMCA 366

Rogers v The Queen (1994) 181 CLR 251

SZAWW v Minister for Immigration (2003) FMCA 479

SZBXA v Minister for Immigration [2004] FMCA 96

Walton v Gardiner (1993) 177 CLR 378

Applicant:
SZCVO



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ541 of 2004



Delivered on:


13 September 2004



Delivered at:


Sydney



Hearing date:


13 September 2004



Judgment of:


Driver FM



REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Mr R White

Sparke Helmore


INTERLOCUTORY ORDERS

(1) The application for judicial review filed on 2 March 2004 is dismissed summarily as an abuse of process pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $3,000.

(3) The Court directs that no further application by this applicant to review the decision of the Refugee Review Tribunal handed down on 29 May 2002 be accepted for filing, except by leave of the Court.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ541 of 2004

SZCVO


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me a notice of objection to competency filed on 4 May 2004 and a notice of motion filed on 29 June 2004 on behalf of the respondent Minister seeking the summary dismissal of an application for judicial review filed on 2 March 2004. The motion and objection are opposed by the applicant. The notice of motion and notice of objection to competency are supported by an affidavit by Jennifer Bautista made on 29 June 2004.

2. Mr White appeared for the Minister and made oral submissions, but he also relies upon written submissions filed in my chambers on 2 September 2004 together with a chronology. The chronology provides relevant background and I adopt it for the purposes of today's proceeding:

BACKGROUND





4 July 1975
Applicant born in India




22 February 1998
Applicant arrived in Australia.




DIMIA





17 October 2000
Applicant lodged application for a protection visa.




23 November 2000
Delegate of respondent refused application for a protection visa.




RRT





21 December 2000
Applicant applied to RRT for review of delegate's decision.




2 May 2002
Delegate's decision affirmed by RRT.




29 May 2002
RRT decision handed down




29 May 2002
Letter from RRT sent to Applicant re application for review of decision to refuse protection visa




FC Sydney
N602 of 2002




24 June 2002
Application for judicial review and affidavit lodged in the Federal Court in the New South Wales District registry.




25 July 2002
Court book filed and served




15 August 2002
Directions hearing. Matter was listed for hearing on 10 September 2002 at 10:15am before Branson J.




6 September 2002
Application dismissed by way of consent orders with costs fixed in the amount of $2,700.00.




FC South Australia
S440 of 2003




22 April 2003
Application for judicial review filed in the Federal Court, South Australia District Registry.




22 April 2003
Affidavit of Mark Clisby lodged in the Federal Court of South Australia annexing a copy of the RRT decision.




30 September 2003
Directions hearing before Mansfield J. The matter was set down for further directions hearing 21 November 2003.




19 November 2003
Notice of Objection to Competency filed with supporting affidavit of Cassandra White.




19 November 2003
Amended application for an order of review signed by Mark Clisby.




20 November 2003
Memorandum and outline of applicant's submissions signed by Mark Clisby.




21 November 2003
Second directions hearing before Selway J. The direction hearing was adjourned to 4 February 2004.




5 December 2003
Notice of motion for summary dismissal with supporting affidavit of Julian van Lingen filed in the Federal Court.




15 January 2004
Affidavit of Angela Kent, a solicitor employed by Mark Clisby filed in the Federal Court.




4 February 2004
Direction hearing before Selway J. Application dismissed for failure to comply with orders and costs awarded in favour of the respondent.




FMC Sydney
SZ541 of 2004




2 March 2004
Application for judicial review lodged in the Federal Magistrates Court in the Sydney registry




4 May 2004
Notice of Objection to Competency filed and served



3. The notice of objection to competency, in order to succeed, would require a finding that the RRT decision is a privative clause decision. Ordinarily that question can only be resolved after a final hearing on the application for judicial review. Occasionally, the issue is so clear that it can be resolved earlier. That would be the case if a decision had previously been made that was binding upon this Court which found that the RRT decision was a privative clause decision. It might also be the case if a previous decision had been made by another court (or this Court) which, while not binding on this Court, was persuasive on that issue. It might also be the case if the validity of the tribunal decision was obvious and unassailable.

4. This is the third application commenced by this applicant against the decision of the RRT in his case. The two previous applications were instituted in the Federal Court. The first was dismissed by consent on 6 September 2002. The second was dismissed by Selway J on 4 February 2004 because of the applicant's failure to comply with court orders. In neither of those proceedings was there any resolution of the question of whether the RRT decision is a privative clause decision. It remains, therefore, an open question. I have not had the opportunity to satisfy myself whether or not the validity of the RRT decision is obvious and unassailable. I do not think that it is necessary or appropriate for me to make any finding in today's proceeding whether the RRT decision is a privative clause decision. It would follow that I cannot in today's proceedings uphold the Minister's notice of objection to competency.

5. The Minister's motion, of which notice was given on 29 June 2004, sets out four grounds upon which the application for judicial review should be dismissed summarily. I gave leave for a fifth ground to be added, namely that the application for judicial review discloses no cause of action. Contrary to what is said in the Minister's written submissions, all the grounds in the notice of motion are relied upon.

6. I do not consider it necessary for me to decide whether the doctrine of res judicata, issue estoppel or anshun estoppel applies in this case. It is, in my view, apparent from the affidavit of Jennifer Bautista that the application should be dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules") as an abuse of process. In SZBXA v Minister for Immigration [2004] FMCA 96 at paragraph 9, I adopted for the purposes of my judgment the following submission made on behalf of the respondent Minister in that case:

An application for judicial review amounts to an abuse of process if it is filed for a collateral purpose, for example, for the purpose of extending the period of the applicant's stay in Australia.[1] However, even if no ulterior motive is found to exist, the repeated bringing of similar applications can still be an abuse of process, if it would be unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute.[2] The Court should also consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same matter.[3]

In SZAWW v Minister for Immigration [2003] FMCA 479, the Court applied the extended notion of abuse of process in Walton v Gardiner when holding that the applicant should not "be permitted to wait seven years to take advantage of a change in the law to reactivate proceedings that had earlier been abandoned". The Court further held that it would be unfair to the Minister to permit multiple applications for review.

7. The delay in this case is less serious than was the case in SZAWW. However, the fact is that the applicant has, on two previous occasions, instituted judicial review proceedings that he has either permitted to be dismissed by consent or which have been dismissed for default of compliance with orders. The present application for judicial review is a grab bag of grounds which convey no meaning without particulars.

8. The applicant's arguments supporting his application set out in the document headed applicant's arguments for competency filed on 10 September 2004 are of very little assistance to him. The contents are formulaic and the document is very similar, if not identical, to documents filed in other proceedings.

9. I infer from these circumstances that the multiplicity of proceedings brought to review the decision of the RRT and the manner in which the legal proceedings have been pursued by this applicant show a purpose of an attempt to maximise the period of his stay in Australia.

10. It would be unjustifiably vexatious and oppressive and would bring the administration of justice into disrepute to permit the present application to go any further. I will therefore dismiss the application summarily as an abuse of process pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.

11. On the question of costs, the application having been dismissed summarily as an abuse of process, Mr White seeks an order for costs on an indemnity basis fixed in the sum of $3,000. The applicant told me that he is impecunious but that is not a reason for me to refrain from making a costs order. Having found an abuse of process, I agree that costs should be awarded on an indemnity basis. I consider Mr White's estimate of $3,000 to be reasonable having regard to the amount of preparation undertaken to date in this matter. I also agree that directions should be issued to prevent the registry from accepting any further application to review the decision of the RRT except by leave.

12. I will order that the application for judicial review filed on 2 March 2004 is dismissed summarily as an abuse of process pursuant to rule 13.10(c) of the Federal Magistrates Court Rules; the applicant is to pay the Minister's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $3,000. The Court directs that no further application by this applicant to review the decision of the Refugee Review Tribunal handed down on 29 May 2002 be accepted for filing except by leave of the Court.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 September 2004


--------------------------------------------------------------------------------

[1] NALE v Minister for Immigration [2003] FMCA 366 (22 August 2003) at [12].

[2] Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256; Chu v Minister for Immigration (1997) 78 FCR 314 at 323-326.

[3] Johnson v Gore Wood & Co [2002] 2 AC 1 per Lord Bingham at 22-34.
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