FEDERAL COURT OF AUSTRALIA SZDZI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 225 SZDZI AND ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR NSD 274 OF 2005 ALLSOP J 21 MARCH 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 274 OF 2005 ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE BETWEEN: SZDZI FIRST APPELLANT SZDZJ SECOND APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 21 MARCH 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the Federal Magistrates Court made on 11 February 2005 be set aside. 3. The proceeding be remitted to the Federal Magistrates Court. 4. The first respondent pay the appellants' costs of the appeal and of the application for summary dismissal before the Federal Magistrates Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 274 OF 2005 ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE BETWEEN: SZDZI FIRST APPELLANT SZDZJ SECOND APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: ALLSOP J DATE: 21 MARCH 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal, instituted by leave granted on 24 June 2005, against orders made by the Federal Magistrates Court on 11 February 2005 summarily dismissing the application of the appellants for judicial review of a decision of the Refugee Review Tribunal (the "Tribunal") made on 22 November 2001 and handed down on 12 December 2001. The summary dismissal was pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001, on the basis that the application was an abuse of process. The decision of the Tribunal affirmed a decision of a delegate of the Minister not to grant protection visas to the appellants. The Chief Justice had made a direction under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal be heard by a single Judge. 2 The relevant history and background of the proceedings are substantially taken from the reasons of the Federal Magistrate and the helpful submissions of Mr Johnson, who appeared for the respondent. 3 On 26 October 1999, the appellants, husband and wife, who are citizens of Russia, lodged applications for protection visas. The claims were based on the fears of the wife. She described herself as "Ingush-Russian". The claims were based on a number of incidents of harm that she said had befallen her in Russia for reasons of her Caucasian ethnicity. 4 This application was rejected by a delegate of the Minister on 21 January 2000. Upon review of that decision the Tribunal affirmed the decision of the delegate. The Tribunal made this decision on 22 November 2001 and handed it down on 12 December 2001. 5 On 7 January 2002 an application was filed in the Federal Court in proceeding NSD 14 of 2002. In April 2002 a document being a notice of discontinuance was sent to the Court by the appellants' then solicitor and migration agent. The proceeding was shortly thereafter discontinued when the proceeding came before a Judge of the Court. 6 Before the Federal Magistrate, not under oath and not on affidavit, the appellant explained the history of the matter. There was no evidence taken and no cross-examination before the Federal Magistrate. The appellant explained that the application had been abandoned because of the perceived effect of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which brought in the privative clause regime. The Federal Magistrate appears to have accepted this explanation, saying at [21] of his reasons: … In the first applicant´s outline of submissions she is very honest in setting out the details of why she discontinued her previous application on 16 April 2002. It was explained that the applicants´ decision to discontinue the application was related to advice they had received regarding the new judicial review scheme, which, for convenience, is identified as the introduction of the privative clause. The first applicant indicated that she had sought legal aid in February 2002 but was advised by that organisation that the law had recently been changed making it much more difficult to succeed on appeal and that the Legal Aid Commission was not prepared to represent the applicants. 7 On 4 February 2003 Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476 was handed down by the High Court. 8 In July 2003 the appellants' migration adviser sent a letter to the Minister seeking the exercise of discretion under s 417 of the Migration Act 1958 (Cth). On 5 May 2004 a delegate of the Minister advised the appellants that the Minister would not exercise his discretion under s 417 of the Migration Act. 9 On 2 July 2004 the appellants renewed their challenge to the Tribunal's decision by the filing of an application in the Federal Magistrates Court. 10 In his reasons the Federal Magistrate noted that there was no explanation before him of the delay between February 2003 (when Plaintiff S 157 was handed down) and July 2004 (when the second application was made). 11 The Federal Magistrate concluded that the application was an abuse of process. He relied on what Driver FM had said in SZBQW v Minister for Immigration and Multicultural and Indigenous Affairs [2004]FMCA 207: 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. 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. 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 manner. 12 Undoubtedly, bringing an application for a collateral purpose is an abuse of process. Undoubtedly, repeated applications may be described as vexatious or oppressive or likely to bring the administration of justice into disrepute. Nevertheless, I am unable to characterise the events in question as falling into any of these categories. Delay there has been. Some of that delay is unexplained. Whilst the evident assumption that can be made that the appellants were not keeping a close eye on the migration jurisprudence of the High Court cannot be acted on directly, it does assist in depriving the facts of any more sinister inference. The fact is that Parliament in 2001 passed legislation to restrict significantly access to the Courts by people such as the appellants. That was its avowed intention. The appellants acted on what Parliament and then the Executive stated was the position. The High Court later ruled otherwise. The appellants sought another avenue of review of their position having been told of the effect of the legislation. After some delay, they recommenced their legal action, which, as yet, has not been dealt with on the merits. To classify as vexatious this attempt to invoke the judicial power of the Commonwealth fails to take into account the course of action taken in reliance, ultimately, on the effect of an Act of Parliament said by the Executive at the time to have a certain consequence, which has turned out to be fundamentally misconceived. The facts before the Federal Magistrate of themselves gave no foundation for a conclusion that the claim was an abuse of process or was unjustifiably vexatious. The facts are quite different from a party who, after resolution of the claim on the merits, simply begins again. The facts are also different from those where litigation is ended by consent without a mistaken appreciation of the effect of the governing law propounded by the Executive. 13 Considerations as to whether delay caused by applications under s 417 can be excused for extensions of time are not to the point. (Cf M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520). The issue here is whether the facts disclosed here, without more, can amount to an abuse of process. In my views they do not and cannot. 14 The orders of the Federal Magistrate were only founded upon Rule 13.10(c) that the proceedings were an abuse of process. The orders were not based on Rule 13.10(a) that no reasonable cause of action was disclosed. Nevertheless, it was put to me by Mr Johnson who appeared for the Minister that I should look at the Tribunal's reasons and the complaints made in respect of them in order that I may conclude that there would be no purpose in allowing the appeal on its merits to proceed. 15 I have considered the submissions put on behalf of the Minister. I remain concerned, in a not insignificant degree, that the process of fact finding by the Tribunal may be such as to fall within s 476(4) of the Migration Act or as to exhibit such a degree of illogicality as to arguably fall within what was said in Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. 16 There may also be issues under s 424A of the Migration Act 1958. On page 17 of its reasons, the Tribunal referred to the appellants' passports and the contents of them. If these passports were provided to the Department before the review process in which the Tribunal was engaged there may have been a failure to comply with s 424A(1). 17 For the above reasons the appeal should be allowed and the matter remitted to the Federal Magistrates Court. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 21 March 2006 The appellants appeared in person through the first appellant. Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Clayton Utz Date of Hearing: 7 December 2006 Date for Last Submission: 16 January 2006 Date of Judgment: 21 March 2006