SZGGS v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for leave to appeal from a judgment of the Federal Magistrates Court in SZGGS v Minister for Immigration [2005] FMCA 1730. The trial judge upheld a motion by the first respondent ('the Minister') summarily to dismiss the application before that court on the basis of rule 13.10(a)-(c) of the Federal Magistrates Court Rules, namely, that there was no reasonable cause of action disclosed in relation to the proceeding; the proceeding was frivolous or vexatious; and the proceeding was an abuse of the process of the court. His Honour granted the Minister's application on the motion on all three bases for the reasons that he gave. His Honour set out the history of the applicant's attempts to review a decision of a delegate of the Minister given as long ago as 21 July 1997 at paragraphs [6]-[20] of the judgment the subject of this application. 2 On 13 July 1999 the Refugee Review Tribunal ('the Tribunal') affirmed the decision of the delegate not to grant a protection visa to the applicant. The applicant then applied to this court and in Alam v Minister for Immigration and Multicultural Affairs [1999] FCA 1630 Einfeld J recorded that the case had no merit at all and never had any chance of succeeding. The applicant then joined the Muin/Lie class action in the High Court of Australia: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. When that matter was remitted to this court, Emmett J made orders by consent dismissing the application on 30 April 2004. The applicant then filed an application in the Federal Magistrates Court on 17 May 2004 seeking a review of the same decision of the Tribunal. 3 On 25 August 2004 the Minister's solicitor filed an application for summary dismissal which was made returnable on 1 September 2004. However, the applicant on 31 August 2004 filed a notice of discontinuance. Undeterred, on 24 September 2004 he made an application to this court for an extension of time to file and serve a notice of appeal against Einfeld J's decision. On 9 December 2004, Bennett J dismissed that application saying that she was of the view that the applicant had no prospects of success in an appeal based on a new argument put forward, if it were a new argument, and had not demonstrated any special reasons for the exercise of a discretion to extend the time for filing a notice of appeal: Applicant S1746 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1591 [36]. 4 The applicant then applied for special leave to appeal to the High Court of Australia on 6 January 2005. The High Court dismissed that application on 27 April 2005. On 10 May 2005 the applicant filed further proceedings in the Federal Magistrates Court seeking judicial review of the decision of the Tribunal made on 13 July 1999. That application was summarily dismissed as an abuse of process by Driver FM on 1 August 2005 in SZGGS v Minister for Immigration [2005] FMCA 1071. In the course of his Honour's reasons for dismissal he said: 'The manner in which the Applicant has chosen to conduct his various proceedings leads me to the view that he has embarked upon a course of conduct intended to occupy as much judicial time as possible so as to extend his presence in Australia. I have previously held that such an ulterior motive points to an abuse of process. In addition, to the extent that the issues that the Applicant now seeks to agitate have been raised in earlier proceedings and dealt with, the Applicant would be estopped from raising those same issues again. Further, to the extent that those issues could have been raised and were not, the principles of Anshun estoppel would apply.' 5 On 18 August 2005 the applicant sought leave to appeal from Driver FM's decision. In SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1296 on 7 September 205, Emmett J refused that application, saying at paragraph [8]: 'On the material before me the proposed appeal could not possibly succeed and there would be no utility in granting leave to appeal.' 6 On 21 September 2005 the applicant commenced the proceedings the subject of the present application in the Federal Magistrates Court. As recorded by his Honour below, the explanation for that commencement was that the applicant had not previously challenged the decision of the Department, that is, the delegate, before in any court. His Honour noted that the applicant conceded that he had not made any mention in his application then before the court that the decision of the delegate had been reviewed by the Tribunal and said that this omission 'was probably a mistake'. 7 The applicant asserted to his Honour that he did not have any security in his home country which was why he kept coming to court. He sought from his Honour an order that the original application for his protection visa be sent back, not to the Tribunal but, to the Minister's delegate. 8 His Honour concluded that the substantive application had no merit at all. I am of opinion that that is an unimpeachably correct finding. In Walton v Gardiner (1993) 177 CLR 378 at 392-393 Mason CJ, Deane and Dawson JJ said: 'The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail(see e.g. Metropolitan Bank v Pooley (1885) 10 App Cas 210 at pp 220-221; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at pp 128-130). Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them(see, generally, Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538). Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings (see e.g. Reichel v Magrath (1889) 14 App Cas 665 at p 668; Connelly v Director of Public Prosecutions [1964] AC 1254 at pp 1361-1362). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police ([1982] AC 529 at p 536) as the "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".' 9 The basis on which the applicant sought leave to appeal is set out in his affidavit sworn 12 December 2005 and the draft notice of appeal of the same date. Before I embarked on the hearing of this matter I had the matter called outside the court. The applicant was given notice in a letter from the court dated 23 February 2006 that the matter would be heard today. Mr Markus who appears for the Minister, informed me that he had received a copy of that letter in his office on 24 February. Mr Markus said no communication had been received from the applicant in relation to today's hearing and there is no record of the court of any such communication. 10 The notice of appeal asserts that the trial Judge in the Federal Magistrates Court erred in holding that the delegate of the Minister had not given a biased decision based or that the original decision was not full of unreasonable and illogical applications in the delegate's mind. 11 It is asserted also in the draft grounds of appeal that the trial judge did not consider that it was in some way an unfair procedure to appraise his claim on the basis that there were questions which were not asked by the delegate of the Minister in an interview with the applicant but on the other hand those questions were asked repeatedly by the Tribunal in the interview. He further asserts that he disclosed a reasonable cause of action in the proceedings before the trial judge. 12 I am of the opinion that there is no substance whatever in the proposed grounds of appeal. To begin with the decision of the delegate was the subject of the merits review before the Tribunal which the applicant sought and about which quite a number of his repeated court applications have been concerned. 13 In Zubair v Minister (2004) 139 FCR 344 at 352-354 [28]-[32] a Full Court of this Court held that any error affecting the decision of a delegate, including one which may go to jurisdiction, could not be relied on to challenge the subsequent decision on a merits review before the Tribunal. That is because the function of the Tribunal on review is to arrive at the correct and preferable decision: see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18. Secondly, by electing to challenge the adverse decision by way of merits review an applicant invites the reviewer to apply to him or her a fair procedure in arriving at that correct and preferable decision. Therefore, one ignores the alleged errors attending the making of the original decision: see too: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116. 14 Whether or not Zubair would otherwise apply to the present applicant, one has only to consider the persistent litigation brought by the applicant challenging the rejection of his claims by the Tribunal to see that his Honour was justified in coming to the conclusion that the proceedings below ought be dismissed. 15 I do not have to form a final view about those matters because my function is to consider the application as an interlocutory application in which leave to appeal must be obtained. In Bienstein v Bienstein (2003) 195 ALR 225 at 231 it was said at paragraph [29]: 'An applicant for leave must establish that the decision in question is attendant with sufficient doubt to warrant the grant of leave. He must also show that substantial injustice will result from refusal of leave to appeal.' 16 I am of the opinion that there is no sufficient doubt to warrant the grant of leave on the basis of the material in the application for leave to appeal or the applicant's affidavit of 12 December 2005, the draft notice of appeal, or the matters referred to in the judgment below. For those reasons the application is dismissed.