FEDERAL COURT OF AUSTRALIA

SZASP v Minister for Immigration and Citizenship [2007] FCA 771

MIGRATION – abuse of process – burden on the courts of dealing with vexatious litigants bringing meritless claims while being repeatedly granted bridging visas

Migration Act 1958 (Cth) ss 48B, 416

SZASP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 129 OF 2007

SZBXA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 277 OF 2007

SZAFD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 347 OF 2007

APPLICANT NACS OF 2001 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 402 OF 2007

APPLICANT S1000 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 503 OF 2007

MOORE J

24 may 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the first respondent's costs fixed in the sum of $750.

3.                  The name of the first respondent be amended to read "Minister for Immigration and Citizenship".

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the first respondent's costs.

3.                  The name of the first respondent be amended to read "Minister for Immigration and Citizenship".

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the first respondent's costs fixed in the sum of $1000.

3.                  The Refugee Review Tribunal be added as second respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the first respondent's costs fixed in the sum of $1800.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the first respondent's costs fixed in the sum of $1200.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     These five applications are illustrative of a pattern of migration proceedings instituted in this Court which are an abuse of process.  The applications were heard together on 9 May 2007.  The applicants are Bangladeshi nationals who applied for protection visas which were refused by delegates of the Minister between 1998 and 2000.  Each application is brought against a background of extensive litigation, which is detailed in relation to each matter in annexures to these reasons.  The applicants have all previously challenged the relevant decision of the Refugee Review Tribunal to affirm the decision of a delegate, in the Federal Magistrates Court, this Court and in the High Court, on at least one occasion in each Court, and sometimes on a number of occasions.  On every occasion, each applicant has been unsuccessful.

SZASP

2                     This is what purports to be a notice of appeal filed 31 March 2007 from the judgment of a Federal Magistrate of 16 January 2007: see SZASP v Minister for Immigration & Anor [2007] FMCA 56.  The applicant requires leave to appeal.  The Federal Magistrate refused an application to reinstate the appellant's substantive application, which had been dismissed on 12 December 2006 in the absence of the appellant when he failed to appear at the first listing date.  The substantive application had sought orders that the Minister show cause why a remedy should not be granted under s 476 of the Migration Act 1958 (Cth) (“the Act”) in relation to a decision of the Tribunal handed down on 27 October 2006.  The application to the Tribunal was the second application to review the decision of a delegate to refuse to grant a protection visa.  The applicant had stated in a letter to the Tribunal that he was seeking a second review of the delegate's decision because of changed circumstances in Bangladesh.  The Tribunal decided that it did not have jurisdiction to determine the second application on the basis that it had already discharged its functions to review that decision.  His Honour concluded that the Tribunal was undoubtedly correct and that the substantive application was doomed to fail were it to proceed to a hearing.

3                     The draft notice of appeal identified four grounds, namely that the Tribunal failed to accord natural justice, the Tribunal made an error of law by identifying the wrong issue and relying on irrelevant material and/or ignoring relevant material, that the Tribunal failed to exercise jurisdiction or acted in excess of its jurisdiction, and the Tribunal decision was in bad faith.  In the absence of particulars, these grounds of appeal are meaningless. 

4                     It is necessary to first say something about the applicant's attempt to seek a second review of the delegate's decision in the Tribunal.  The Tribunal's conclusion that it no longer had jurisdiction to review the delegate's decision, having already discharged its functions under the Act to review the delegate's decision, was correct: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30], Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7], and Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301.  The Tribunal was also correct in finding that changed circumstances did not provide any legal basis for undertaking a second review.  The avenue provided by the Act to take into account changed circumstances, at least potentially, is the Minister's power to permit lodgement of a further protection visa application under s 48B of the Act. 

SZBXA

5                     This applicant has an extensive history not only of instituting proceedings which are an abuse of process but also of failing to appear before the court.  He failed to appear on three occasions in the Court below and again at the hearing before me on 9 May 2007. 

6                     On 27 February 2007, the applicant filed an application for leave to appeal against a judgment of a Federal Magistrate of 1 February 2007 dismissing an application to set aside orders of 19 December 2006: see SZBXA v Minister for Immigration & Anor [2007] FMCA 119.  By process filed in the Federal Magistrates Court on 10 February 2006, the applicant had sought judicial review of the Tribunal dismissing a second application to that Tribunal for review of a decision of the delegate refusing to grant a protection visa.  The Tribunal decided that it had already discharged its functions, having already affirmed the delegate's decision.  In the Federal Magistrates Court, the applicant failed to appear at the hearing of the Minister's motion for summary dismissal on 6 July 2006, and the Federal Magistrate dismissed the substantive application for non-appearance.  The applicant then filed an application to set aside the orders of 6 July 2006, which was dismissed for non-appearance on 28 August 2006 when there was no appearance by any party.  An application to set aside the orders of 28 August 2006 was dismissed for non-appearance on 19 December 2006.  On 1 February 2007, when the applicant appeared by telephone, the Federal Magistrate dismissed an application to set aside the orders of 19 December 2006 on the basis that he had not provided a satisfactory explanation for his failure to attend and that there would be no utility in reinstating the substantive application.

7                     The draft notice of appeal identified the grounds of appeal as being that the Tribunal had failed to exercise its jurisdiction under the Act and that it did not follow proper procedures.  Again, there are no particulars and no attempt has been made to identify an error on the part of the Federal Magistrate.

SZAFD

8                     This is an application for leave to appeal filed 8 March 2007 from a judgment of a Federal Magistrate of 20 February 2007: SZAFD v Minister for Immigration [2007] FMCA 182.  The Federal Magistrate dismissed an application seeking judicial review of a decision of the Tribunal dated 7 January 2003 on the basis that the application was filed outside the prescribed time limit and the Court had no jurisdiction to extend time, by virtue of the Migration Litigation Reform Act 2005 (Cth) and s 477 of the Act.  The Federal Magistrates Court had previously dismissed an application for review of the Tribunal decision on 24 September 2003.

9                     The draft notice of appeal asserted that the Federal Magistrate failed to find an error of law, jurisdictional error, procedural fairness and relief under the Judiciary Act 1903 (Cth).  It also stated that the "grounds and relief" were "very similar" to Lee v Refugee Review Tribunal; Muin v Refugee Review Tribunal (2002) 190 ALR 601.  It referred also to Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.  In his affidavit filed 8 March 2007, the applicant claimed that the Federal Magistrate did not consider his application.  He referred also to the fact that he was unrepresented in the proceeding below.

Applicant NACS of 2001

10                  This is an application for leave to appeal filed 15 March 2007 from a judgment of a Federal Magistrate of 26 February 2007: see Applicant NACS of 2001 v Minister for Immigration & Anor [2007] FMCA 302.  The Federal Magistrate dismissed an application for review of a decision of the Tribunal of 19 September 2006 that it had no jurisdiction to determine an application for review of the decision of a delegate of the Minister to refuse to grant a protection visa, having previously affirmed that decision.  The applicant had indicated in a letter to the Tribunal that although the Tribunal had already reviewed the delegate's decision, his situation had changed such that he now faced a greater risk of persecution.  The Federal Magistrate concluded the application was an abuse of process and ordered that no further application for review of the delegate's decision of any decision of the Tribunal in relation to the delegate's decision was to be made without further order.  Costs were awarded on an indemnity basis.

11                  The draft notice of appeal identified broad grounds of appeal and no particulars were provided.  The grounds were that the Tribunal failed to accord natural justice, identified the wrong issue and/or relied on irrelevant material and/or ignored relevant material, failed to exercise its jurisdiction under the Act and/or acted in excess of its jurisdiction, and that the Tribunal decision was made in bad faith. 

12                  It is apparent that this applicant also sought to raise changed circumstances when making a second application for review to the Tribunal.  As noted above, the Tribunal was correct in concluding that it had no jurisdiction to conduct a further review of the delegate's decision: see [4].

Applicant S1000 of 2003

13                  This is an application for leave to appeal filed 28 March 2007 from the judgment of a Federal Magistrate of 8 March 2007: see Applicant S1000/2003 v Minister for Immigration & Anor [2007] FMCA 377.  The Federal Magistrate dismissed the application and found that the Tribunal had been correct in concluding that the Tribunal had already discharged its functions to review the delegate's decision, that decision having already been the subject of a decision of the Tribunal of 20 March 2000.  Before the Federal Magistrate, the applicant stated that he wished to put submissions to the Tribunal concerning changed circumstances.  His Honour noted the Tribunal lacked jurisdiction to hear the application even if circumstances had changed.  His Honour concluded that the application was an abuse of process of the Court, and that the applicant had instituted a vexatious proceeding, and had habitually, persistently, and without reasonable grounds instituted vexatious proceedings in that Court and other Australian Courts, pursuant to Rule 13.11(1) of the Federal Magistrates Court Rules 2001.  His Honour ordered, on the Court's own motion, that the applicant may not continue or institute any proceeding in that Court without leave, and that the applicant was not to file, and the Registry of the Court was not to accept for filing, any further application for review of the delegate's decision, either of the two Tribunal decisions, or any other decision relating to his application for a protection visa.

14                  The draft notice of appeal identified a number of unparticularised grounds, including that the Tribunal failed to exercise proper procedure and that both the Tribunal and Federal Magistrate denied the applicant procedural fairness.  The applicant also stated that the Court had not considered his financial status in imposing costs orders against him.  Again, in the absence of any particulars, these grounds are meaningless.

15                  At the hearing, the applicant in this matter sought, in effect, to raise changed circumstances as a basis for the Tribunal's jurisdiction to conduct a further review of the delegate's decision.  He complained that the Federal Magistrate did not look at his claim that his circumstances had changed since September 11 because he did not support terrorism and spoke out against it.  He submitted that under s 416 of the Act,an applicant is entitled to re-apply to the Tribunal if their circumstances have changed.

16                  This argument is misconceived.  Section 416 provides:

Only new information to be considered in later applications for review

If a non‑citizen who has made:

(a)               an application for review of an RRT‑reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b)               applications for reviews of RRT‑reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT‑reviewable decision, the Tribunal, in considering the further application:

(c)                is not required to consider any information considered in the earlier application or an earlier application; and

(d)               may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.

17                  As noted earlier, the Tribunal has no jurisdiction to review the decision of a delegate already the subject of an earlier Tribunal decision.  Section 416 cannot apply in such circumstances.  However, for completeness, it is convenient to note the role of s 416 in the legislative scheme.  The section applies in circumstances where there is a valid application before the Tribunal and enables the Tribunal not to consider claims that were earlier considered by the Tribunal, where an application is made to the Tribunal for review of a delegate's decision not previously the subject of review by the Tribunal.  Applicants are prevented from making further applications to the Minister for protection visas unless the Minister exercises his or her power under s 48B of the Act to permit an applicant to make a further application in particular circumstances.  If the Minister exercises the power under s 48B, and the delegate refuses to grant a protection visa, s 416 of the Act will be enlivened if the applicant applies to the Tribunal for review of the delegate's decision, in relation to information which the Tribunal considered earlier.  Section 416 of the Act also potentially has work to do in circumstances where the notification of a delegate's decision was not properly made and where applications for review to the Tribunal are not regarded as being out of time. 

Visa status of the applicants and the bridging visa system

18                  The Minister was represented by separate solicitors in each of the matters at the hearing on 9 May 2007.  I was informed by the solicitors that each of the applicants, other than the applicant in SZBXA, held bridging visas (and had earlier held a succession of bridging visas) although in the case of the applicant in SZASP, the solicitor appearing for the Minister was unable to indicate this conclusively.  The solicitor appearing for the Minister in SZBXA, Ms Rayment, explained that the applicant in that matter had been an unlawful non-citizen for the past year, but had not been detained.

19                  In relation to the applicant in SZAFD, there was a period of over one year when the applicant had no legal proceedings on foot, namely between the refusal of special leave by the High Court on 5 August 2005 and the filing of a second application with the Federal Magistrates Court on 3 January 2007.  The solicitor appearing for the Minister, Mr Reynolds, explained that during that period, the applicant held a bridging visa in connection with an application he made on 6 September 2005 under s 417 of the Act and a request made on that date pursuant to s 48B of the Act.  The s 48B request was finalised on 17 March 2006, and the s 417 application was finalised on 6 December 2006.  He was then granted a further bridging visa pending resolution of the second application to the Tribunal.

20                  Mr Markus, the solicitor appearing for the Minister in Applicant S1000 of 2003 also made a number of points or observations regarding the bridging visa system generally, as he was invited to do.  He submitted that delegates of the Minister responsible for considering applications for bridging visas do not have any power or were not in a position to make findings in relation to competency or the merits of judicial review proceedings brought by applicants.  Typically, applicants apply for bridging visas at regional offices and provide process sealed by a court, whereupon the delegate decides whether he or she is satisfied that the applicant is entitled to a bridging visa, or at least whether the applicant is entitled to apply for such a visa.  Very few delegates at that level have an opportunity, in practice, to consider whether a bridging visa should be refused on discretionary grounds.  The process tended to favour applicants for bridging visas due to the presumption that people challenging decisions concerning substantive visas did so in good faith.  The Minister was also conscious of the need not to interfere with the ability of people to exercise their legal rights in good faith.

21                  I have been informed on previous occasions, and again by Mr Markus at the hearing of these matters, that a review of current arrangements regarding the granting of bridging visas is underway and that the issues I have raised now on a number of occasions are under active consideration.  It is to be hoped that this results in an appropriate means of reducing the number of these cases, as these cases place a significant and unnecessary burden on judicial resources and the courts more generally. 

Disposition of the applications and consideration

22                  The applications in each of the matters must be dismissed.  Were leave granted, none of the appeals would have any prospect of success.  Each is also an abuse of the process of this Court.

23                  In the past six months, I have now had before me nearly 40 migration applications or appeals which are of the same character as these five and which can each be described as an abuse of process.  By the time these applications reach this Court, it is not uncommon for ten or more judicial officers to have considered and rejected proceedings instituted by the applicants in relation to the delegate's decision.  The applicants can have little doubt about the futility of the proceedings.  In the past many cases of the type dealt with in this Court have been the subject of special leave applications to the High Court, which, as far as I am aware, are invariably unsuccessful.  Often a further round of litigant is commenced at a trial level in the Federal Magistrates Court, within three weeks of the application being dismissed by the High Court.  This creates the framework for the litigant to pass through the primary hearing and appeal process again.  Experience would suggest that the dismissal of these applications will also lead to application for special leave in the High Court.

24                  It is a matter of concern that each of the present applicants, and those who institute like proceedings, have been granted bridging visas repeatedly and, as a consequence, permitted to remain in Australia and prosecute proceedings.  One means of attempting to discourage or prevent the institution of proceedings of this general character is to make orders requiring prior leave of the court before further applications (either in relation to reviews of specific decisions or generally) may be accepted for filing.  Such orders are commonly sought by the Minister's solicitors and are often granted, both in this Court and the Federal Magistrates Court.  As I have indicated to legal representatives appearing for the Minister on previous occasions, it is questionable whether this mechanism is effective in discouraging or preventing such proceedings.  Orders of this kind have been made in a number of the present matters.  In Applicant S1000 of 2003, such orders were made on two occasions by the Federal Magistrates Court and on one occasion by this Court.  The burden of giving effect to such orders is placed on the registry of the relevant court, and in practice, the requirement for leave may merely create another opportunity for litigation.  Additionally, the use of pseudonyms because of s 91X of the Act renders the registry's task more difficult.  It is doubtful whether the course of declaring an applicant a vexatious litigant, as occurred in Applicant S1000 of 2003 in the Federal Magistrates Court, is effective in practice as a means of addressing the problem.  

25                  An issue of relevance in the grant of bridging visas is of course the need to ensure litigants are not removed from Australia pending legitimate attempts to challenge decisions concerning their right to remain in Australia or the validity of their removal.  In Tchoylak v Minister for Immigration and Multicultural Affairs [2001] FCA 872, an appeal from a decision of the Administrative Appeals Tribunal in which the Tribunal found that the appellant was ineligible for a protection visa, the appellant had been removed from Australia by the Minister prior to the hearing before the Full Court of the Federal Court.  The Court at [50] to [53] said:

Although we consider that we must dismiss this appeal, we cannot allow the situation to pass without expressing our disquiet at what has occurred.  The material filed on behalf of the applicant suggested that there may have been several other recent instances where applicants for review in this Court have been removed from Australia by officers of the Department while their applications were pending.  Amnesty International claims that Mr Tchoylak case was the third occasion in recent times in which the Department had pre-empted the Court by deporting an applicant while his or her case was pending.  When pressed by the respondent for particulars, Amnesty International referred specifically, inter alia, to Kopiev v Minister for Immigration and Multicultural Affairs [2000] FCA 1831 per Sackville J.  There the applicant was removed from this country three days before the first directions hearing by the Court.

The respondent has filed extensive affidavit material which casts doubt upon whether at least some of Amnesty International’s claims are justified.  It is neither necessary nor appropriate that this Court determine whether Mr Tchoylak's case represents an isolated instance, now never likely to be repeated, or whether it is but one of a number of cases where the Department has failed properly to discharge its responsibilities.  

The respondent has offered an apology to the Court and, it may be inferred, to the applicant, for what has occurred.  There is no suggestion, in the present case, that the applicant’s removal from Australia was the result of anything other than a series of misunderstandings on the part of officers within the Department.  That, of course, is little comfort to the applicant.

The respondent must take responsibility for ensuring that no one is removed from this country while there are proceedings pending in this Court challenging the validity of that removal.  We do not accept that any of the various subsections of s 198 of the Act, which impose a duty in the circumstances there specified to remove a non-citizen “as soon as reasonably practicable” can be invoked by the respondent to justify what occurred in the present case.

26                  The Court ordered that the Minister pay the appellant's costs (paid to the applicant's pro bono counsel) on an indemnity basis.

27                  Courts are entitled to take a critical view of the removal from the country of any person seeking to challenge the validity of removal where he or she has not yet exhausted all reasonable and legitimate avenues of review open to him or her.  This is clearly the situation to which their Honours' comments at [53] were directed.  No doubt there are also great practical difficulties in administering legislation in this area, and to closely monitor the circumstances of every individual who is potentially someone who should be removed from Australia.  However, it is difficult to accept that applicants who have repeatedly instituted unsuccessful and futile proceedings should be allowed to remain in Australia by the grant of bridging visas to continue the cycle of vexatious litigation in the Australian court system.  It is also difficult to accept that the repeated grant of bridging visas in relation to such litigation is a necessary and unavoidable by-product of the need to protect the rights of individuals to prosecute proceedings in the courts. 

28                  I have now also raised on a number of occasions, including at the hearing on 9 May 2007, whether the Minister should have his costs in these cases, where the Minister, or his Department and officers, have failed to remove the applicant from Australia assuming, absent a bridging visa, that would have occurred.  In the present proceedings however, I am prepared, with some hesitation, to make orders that each of the applicants pay the Minister's costs and where a fixed costs order has been sought, order that costs be fixed in the amount sought.

29                  I conclude by noting that almost always litigants in the position of the present applicants have been assisted by others.  It may well be that the Department should take steps to identify these individuals.  If identified, costs orders and other relief might be available against them.

Associate:

Dated:         24 May 2007

In SZASP v Minister for Immigration and Citizenship (NSD 129 OF 2007):

In SZBXA v Minister for Immigration and Citizenship (NSD 277 OF 2007):

In SZAFD v Minister for Immigration and Citizenship (NSD 347 OF 2007):

In Applicant NACS of 2001 v Minister for Immigration and Citizenship (NSD 402 OF 2007):

In Applicant S1000 of 2003 v Minister for Immigration and Citizenship (NSD 503 OF 2007):

ANNEXURE A: SZASP v MINISTER FOR IMMIGRATION AND CITIZENSHIP (NSD 129 OF 2007)

1                     The applicant arrived in Australia on 7 October 1997 and applied for a protection visa on 19 November 1997.  A delegate of the Minister refused to grant a protection visa on 21 April 1998.  On 8 May 1998 he applied to the Tribunal for review of the delegate's decision.  He claimed to have been politically active in Bangladesh and to have been persecuted as a result.  The Tribunal affirmed the delegate's decision in a decision handed down on 22 November 2000. 

2                     An application for judicial review of the Tribunal's decision was dismissed by the Federal Magistrates Court on 15 October 2004: SZASP v Minister for Immigration [2004] FMCA 657.  The Federal Magistrate's decision also notes that the applicant first sought to challenge the Tribunal's decision by joining a class action in the High Court on 20 June 2001. 

3                     On 28 February 2005, the Federal Court dismissed an appeal from the Federal Magistrate's decision: see SZASP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 151.  The applicant then sought special leave to appeal to the High Court, which was refused on 3 August 2006: see SZASP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 403. 

4                     On 16 August 2006, the applicant made a second application to the Tribunal for review of the delegate's decision of 21 April 1998.  On 26 October 2006, the Tribunal decided that it did not have jurisdiction in the matter in view of its decision of 1 November 2000.  The applicant then sought review of the second Tribunal decision in the Federal Magistrates Court by application filed 20 November 2006.  The applicant failed to appear at the first listing date of 12 December 2006, and the Federal Magistrate dismissed the application for non-appearance.  On 16 January 2007, the Federal Magistrate refused an application to set aside the orders made on 12 December 2006: see SZASP v Minister for Immigration & Anor [2007] FMCA 56.  That decision is the subject of the present application for leave to appeal.

ANNEXURE B: SZBXA v MINISTER FOR IMMIGRATION AND CITIZENSHIP (NSD 277 OF 2007)

1                     This applicant arrived in Australia on 2 September 1999 and application for a protection via on 22 September 1999.  He claimed to be a member of the Bangladeshi Nationalist Party, to have been targeted by members of the rival Awami League and to have been the subject of false and politically motivated criminal charges.  His application was refused by a delegate of the Minister of 5 November 1999.  On 9 January 2002, he applied to the Tribunal for review of the delegate's decision.  The Tribunal affirmed the delegate's decision on 5 February 2002 on the basis of adverse credibility findings in relation to the applicant. 

2                     On 1 March 2002, the applicant filed an application for judicial review in the Federal Court.  On 14 May 2002, Wilcox J dismissed the application for the applicant's non-appearance at the hearing: see NADM v Minister for Immigration and Multicultural Affairs [2002] FCA 642.  The applicant then filed an application to set aside those orders, which was refused by Wilcox J on 3 September 2002: see NADM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1124.  On 6 November 2002, Madgwick, Emmett and Conti JJ refused leave to appeal from the orders of Wilcox J and dismissed the notice of appeal as incompetent: see NADM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 376.  The applicant then applied for special leave to appeal the orders of 6 November 2002 to the High Court.  On 13 November 2003, the applicant filed an application in the Federal Magistrate's Court.  On 14 November 2003, the applicant discontinued the special leave application.

3                     On 13 December 2003, the applicant filed another application for judicial review of the Tribunal's decision in the Federal Magistrates Court.  That application was dismissed as vexatious and an abuse of process on 1 March 2004: see SZBXA v Minister for Immigration [2004] FMCA 96.  His Honour also ordered that no further application in relation to the Tribunal's decision was to be accepted for filing without leave of the Court. 

4                     The applicant then sought leave to appeal the Federal Magistrate's decision in the Federal Court.  On 15 April 2004, Hill J found that although the Federal Magistrate had correctly dismissed the application, the Federal Magistrate did not have jurisdiction to hear the matter because the application was out of time and there was no extension to extend time under s 477 of the Migration Act 1958 (Cth): SZBXA v Minister for Immigration & multicultural & Indigenous Affairs [2004] FCA 445.  Hill J granted leave to appeal but dismissed the appeal.  Costs were awarded on an indemnity basis.

5                     On 8 April 2005, the High Court dismissed an application for special leave to appeal the orders of 15 April 2004: SZBXA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 200.

6                     The applicant proceeded to make a second application to the Tribunal for review of the delegate's decision, filed 21 September 2005.  The Tribunal handed down its decision on 22 December 2005, finding that it had no jurisdiction to review the decision.  On 10 February 2006, the applicant applied to the Federal Magistrates Court for review of the second Tribunal decision.  On 6 July 2006, the applicant failed to appear at the hearing of the Minister's motion for summary dismissal, and the application was dismissed for non-appearance.  An application to set aside the orders of 6 July 2006 was dismissed for non-appearance on 28 August 2006.  On 19 December 2006, an application to set aside the orders of 6 July 2006 was dismissed for non-appearance.  On 1 February 2007, an application to set aside the orders of 19 December 2006 was refused: see SZBXA v Minsiter for Immigration & Anor [2007] FMCA 119.  The present application sought to challenge the decision of 1 February 2007.

ANNEXURE C: SZAFD v MINISTER FOR IMMIGRATION AND CITIZENSHIP (NSD 347 of 2007)

1                     The applicant arrived in Australia on 26 October 2006 and lodged an application for a protection visa on 20 July 2000, which was refused by a delegate of the Minister on 31 August 2000.  The applicant applied to the Tribunal for review of the delegate's decision on 15 September 2000.  He claimed to have a well founded fear of persecution based on his homosexuality and claimed he had been tortured for that reason and threatened by Muslim extremists.  The Tribunal handed down its decision on 5 February 2003, affirming the delegate's decision.  Although the Tribunal accepted he was homosexual, it was not satisfied that the applicant was a reliable witness and did not accept his claims of persecution.

2                     On 25 February 2003, the applicant filed an application in the Federal Magistrates Court for judicial review of the Tribunal's decision.  A Federal Magistrate dismissed the application on 24 September 2003: see SZAFD v Minister for Immigration [2003] FMCA 454.

3                     On 13 October 2003, the applicant filed a notice of appeal from the Federal Magistrates decision in the Federal Court.  On 16 December 2003, Wilcox J dismissed the appeal: see SZAFD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1578.  The applicant then applied for special leave to appeal to the High Court, which was refused on 5 August 2005: see SZAFD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 557.

4                     On 3 January 2007, the applicant filed a second application for review of the Tribunal's decision to the Federal Magistrates Court.  A Federal Magistrate dismissed the application on 20 February 2007 on the basis that the Court did not have jurisdiction to hear the application because it was outside the time period prescribed by s 477 of the Act: see SZAFD v Minister for Immigration [2007] FMCA 182.  On 20 February 2007, the applicant filed an application for leave to appeal the Federal Magistrate's decision, which is the application now before the Court.

 
ANNEXURE D: APPLICANT NACS OF 2001 v MINISTER FOR IMMIGRATION AND CITIZENSHIP (NSD 402 OF 2007)

1                     The applicant arrived in Australia on 6 December 1997 and applied for a protection visa on 2 January 1998.  He claimed to be a political activist and supporter of the Bangladeshi Nationalist Party and to have been targeted by Awami League supporters.  A delegate of the Minister refused to grant him the visa on 4 February 1998.  On 24 February 1998, the applicant applied to the Tribunal for review of the delegate's decision.  The Tribunal affirmed the decision under review in its decision handed down 2 November 2001.  The Tribunal did not accept that the applicant faced false and politically motivated charges on return to Bangladesh as he had claimed and found he had fabricated his case for a protection visa.

2                     On 5 December 2001, the applicant filed an application in the Federal Court seeking review of the Tribunal decision.  That application was dismissed by Hill J on 29 July 2002: see Applicant NACS v Minister for Immigration and Multicultural Affairs [2002] FCA 935.  On 17 December 2002, a notice of appeal from that decision was dismissed by Black CJ, Madgwick and Allsop JJ: see Applicant NACS of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 427.

3                     The applicant then filed an application for special leave to appeal to the High Court, which was dismissed on 2 December 2003: see Applicant NACS of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1547.

4                     On 25 July 2005, the applicant filed a second application for review of the Tribunal's decision in the Federal Magistrates Court.  That application was dismissed by a Federal Magistrate on 18 October 2005: see Applicant NACS of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCATrans 510.  The Federal Magistrate directed that no further application for review be accepted for filing without prior leave of the Court.  The applicant proceeded to file an application for leave to appeal in the Federal Court.  That application was refused on 5 December 2005 by Edmonds J: NACS of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1815.

5                     The applicant then filed an application for special leave to appeal to the High Court, which was dismissed: Applicant NACS of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 294.

6                     On 26 June 2006, the applicant made a second application to the Tribunal for review of the delegate's decision.  By letter dated 25 July 2006, the Tribunal wrote to the applicant to inform him that it appeared that his application was ineligible and that the Tribunal had no power to hear it.  In a decision dated 19 September 2006, the Tribunal concluded that it did not have jurisdiction to conduct a second review of the delegate's decision.

7                     On 9 October 2006, the applicant filed an application in the Federal Magistrates Court for judicial review of the second Tribunal decision.  The application was summarily dismissed as an abuse of process on 26 February 2007: Applicant NACS of 2001 v Minister for Immigration and Citizenship [2007] FMCA 302.  His Honour ordered that no further application fore review of the delegate's decision, or any decision of the Tribunal in relation to that decision, be made without further order of that Court.  The present application is for leave to appeal from the decision of 26 February 2007.

Annexure E: applicant s1000 of 2003 v minister for immigration and citizenship (nsd 503 of 2007)

1                     The applicant arrived in Australia on 12 July 1995 and applied for a protection visa on 26 August 1998.  On 12 October 1998, a delegate of the Minister refused to grant the visa.  On 9 November 1998, the applicant applied to the Tribunal for review of the delegate's decision.  He claimed that he was a supporter of the Bangladeshi Nationalist Party and that he had been persecuted on account of his political opinion.  In its decision handed down 4 April 2000, the Tribunal affirmed the delegate's decision.  The Tribunal was prepared to accept that he was a BNP supporter but regarded the applicant as a highly unreliable witness and did not accept his evidence about persecution.

2                     On 28 April 2000, the applicant filed an application for review in the Federal Court.  On 7 September 2000, the day the matter was listed for hearing, Gyles J granted leave to discontinue the proceeding and dismissed it without consideration of the merits. 

3                     On 31 October 2000, the applicant was joined as a representative party to the Lie class action proceedings in the High Court.  On 20 May 2003, the matter was remitted instanter to the Federal Court.  On 30 April 2004, Emmett J refused the application for an order nisi: S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872.

4                     On 10 May 2004, the applicant filed an application for review of the Tribunal's decision in the Federal Magistrates Court.  The application was dismissed on 13 December 2004 as vexatious and an abuse of process: see Applicant S1000 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 963.  His Honour also ordered that no further application for review of the Tribunal's decision be accepted for filing except by leave of the Court. 

5                     On 9 March 2005, an application for leave to appeal the Federal Magistrate's decision was dismissed by Selway J: see Applicant S1000 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 285.  On 6 April 2005, the applicant filed an application for special leave to appeal to the High Court.  That application was deemed abandoned on 4 May 2005.  A further application for special leave was dismissed on 30 August 2005: S241/2005; Application S1000 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 641. 

6                     On 13 January 2006, the applicant purported to file a further application in the Federal Magistrates Court.  On 31 January 2006, a Federal Magistrate refused leave to file that application and dismissed the application as incompetent.

7                     An application for leave to appeal the Federal Magistrates decision of 31 January 2006 was dismissed by Conti J on 5 May 2006: see Applicant S1000/2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 509.  His Honour also ordered that the Registry of this Court not accept for filing any application of the applicant without prior leave of this Court or the Federal Magistrates Court.

8                     On 5 September 2006, the applicant made a second application to the Tribunal for review of the delegate's decision.  On 27 October 2006, the Tribunal decided it did not have jurisdiction to hear the application.  On 15 November 2006, the applicant filed an application for review of the second Tribunal decision in the Federal Magistrates Court.  That application was dismissed on 8 March 2007: see Applicant S1000/2003 v Minister for Immigration & Anor [2007] FMCA 377.  The applicant was declared a vexatious litigant, and orders were made that the applicant not institute or continue any proceeding in the Federal Magistrates Court without prior leave of the Court, and that the Registry not accept for filing without prior leave of the Court any application for review of the delegate's decision, either Tribunal decision, or any other decision relating to the protection visa application.