A42 of 2003 v Minister for Immigration
[2004] FMCA 1002
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A42 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 1002 |
| MIGRATION – Review of Refugee Review Tribunal decision – notice of motion – notice of motion upheld – no jurisdictional error – application dismissed. |
Federal Magistrates Court Rules 2001, r.13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth)
Walton v Gardiner (1993) 177 CLR 378
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565 (FC)
Applicant A vMinister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
| Applicant | APPLICANT A42 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1356 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The respondent’s Notice of Motion is upheld.
The application be dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1356 of 2004
| APPLICANT A42 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By application filed on 6 October 2004 the respondent moves the Court for orders that proceedings be dismissed pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of process of the Court. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903, filed in the Sydney Registry of the Federal Magistrates Court of Australia on 10 May 2004.
For the purposes of this Notice of Motion the respondent tendered and applied for an affidavit of Katie Jane Bryant sworn on 15 October 2004 (“the affidavit of Ms Bryant”) to be admitted into evidence. A Court Book (“CB”) prepared by the respondent’s solicitors was filed and served on 10 September 2004.
Applicant’s background
The applicant, who is a citizen of India, arrived in Australia on
12 March 1996. On 8 October 1996 she lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”) (CB pp.1-27). On 26 April 1997 a delegate of the Minister for Immigration & Multicultural Affairs (“the delegate”) refused to grant a protection visa (CB pp.45-53) and on 23 May 1997 the applicant sought a review of that decision (CB pp.55-57).
The applicant was born on 19 November 1971 and is from Haryana, India. She came to Australia on a three year student visa with the consent of her parents. During her stay in Australia she married a man from the family with whom she had boarded while a student. The applicant claimed her parents were furious when informed of her marriage. The applicant claimed her parents are orthodox and Haryana is considered a backward state in India, where one cannot marry without the consent of one’s parents. She claimed her father has disowned her over the telephone because of her decision to marry and also claimed her father said that she may not be safe in society if she returned to India (CB p.72).
Litigation history
A brief summary of the litigation history of this applicant is as follows:
a)The initial application for a protection visa was lodged with the Department on 8 October 1996.
b)The application was rejected by the delegate on 26 April 1997.
c)
The applicant sought a review of the delegate’s rejection on
28 May 1997.
d)
On 1 July 1998 the Refugee Review Tribunal (“RRT”) constituted by Paul White made a decision to affirm the decision of the delegate to refuse to grant a protection visa (refer
Annexure F of the affidavit of Ms Bryant).
e)On 11 March 1999 the applicant lodged an application (second application) for a protection visa with the Department (refer Annexure A to affidavit of Ms Bryant).
f)On 12 March 1999 the applicant lodged an application for a resident return visa with the Department (refer to Annexure B to the affidavit of Ms Bryant).
g)On 29 April 1999 the Department advised the applicant by letter that she could not make the second application for a protection visa (refer to Annexure C to the affidavit of Ms Bryant).
h)On 27 March 2000 the delegate sent a letter to the applicant advising her that her applicant for a resident return visa had been refused. With that letter was attached a copy of the delegate’s reasons for decision (refer to Annexure D to the affidavit of Ms Bryant).
i)On 20 April 2000 the applicant lodged an application with the Migration Review Tribunal (“MRT”) seeking a review of the delegate’s decision to refuse to grant her a resident return visa.
j)On 11 July 2001 the MRT forwarded the applicant a letter advising it had decided to affirm the delegate’s decision to refuse to grant the application for a resident return visa. Attached to that letter was a copy of the MRT’s statement of reasons for its decision (refer to Annexure E to the affidavit of Ms Bryant).
k)On 24 January 2003 the applicant’s former solicitor filed an affidavit in the High Court of Australia annexing a copy of the RRT decision made on 1 July 1998 and a draft order nisi. Those proceedings were given the High Court proceedings number A42 of 2002 (refer to Annexure F to the affidavit of Ms Bryant).
l)On 1 July 2003 orders were made by his Honour Justice Hayne in the High Court proceedings A42 of 2002 remitting the matter to the New South Wales District Registry of the Federal Court. Those remitted proceedings were given Federal Court proceedings number N2613 of 2003 (refer to Annexure G to the affidavit of Ms Bryant).
m)On 30 April 2004 His Honour Justice Emmett made orders by consent in the Federal Court proceedings N2613 of 2003 refusing the applicant an order nisi with costs (refer to Annexure H of the affidavit of Ms Bryant).
n)
On 10 May 2004 the applicant filed an application in the Federal Magistrates Court seeking a review of the RRT decision dated
1 July 1998. Those proceedings were given the Federal Magistrates Court proceedings number SYG1356 of 2004.
Respondent’s application
Counsel for the respondent, Mr T Reilly, filed written submissions prior to the hearing. It was submitted that Emmett J dismissed by consent an application for orders nisi in respect of the RRT decision on 30 April 2004. It was contended therefore that the current application filed in this Court is plainly an attempt to re-litigate a case already disposed of and should be dismissed as an abuse of process: Walton v Gardiner per Mason CJ, Deane and Dawson JJ at 393:
“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. 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. 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.”
Counsel for the respondent referred me to the affidavit of Ms Bryant which indicated there had been no challenge to the RRT decision of
1 July 1998 until January 2003 and that the applicant had consented to the dismissal of that application on 30 April 2004. When the applicant was asked if she wished to respond to the current application being made by the respondent there were no submissions made that addressed these issues. The applicant, assisted by the interpreter, made a number of general statements that the decision of the RRT in her view was wrong and that the matter should be referred back to the RRT for reconsideration.
There was no explanation as to why the proceedings in the Federal Court were abandoned in favour of commencing new proceedings in this Court. Despite several invitations to the applicant to address these issues, there was nothing forthcoming other than general statements regarding the personal circumstances of her marriage, offending her parents and the consequences that she may suffer should she return to India where her parents are located.
In the case of the self represent litigant I am aware of the Court’s responsibility to independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors.
I am satisfied that every attempt has been made to notify the applicant and draw to her attention to the purpose of these proceedings today. She has been provided with a copy of the Notice of Motion together with the respondent’s submissions, which address this specific issue. The applicant has also been provided with the opportunity to address this Court to oppose the respondent’s application. Despite this there is nothing before the Court to convince me that the Notice of Motion should not be upheld.
Before I dismiss the substantial application on the above grounds, I will review the substantive application which has subsequently been replaced by the amended application filed on 13 October 2004.
The application for review of the RRT decision
The amended application made under s.39B of the Judiciary Act 1903 sets out the following ground:
1.“The purported decision was not a decision with any lawful effect because it was infected by jurisdictional error.
Particulars
a)The Tribunal accepted the Applicant’s evidence that she fears her father’s threats, that he will threaten, intimidate, ostracise and physically harm her is she returns to India: CB 77.1-3.
b)The Tribunal accepted that she had problems with other family members: CB 77.3.
c)The Tribunal accepted that she would face social ostracism from the wider community if she returns to her home in India: CB 77.4.
d)The Tribunal accepted that because she got married without her parents consent that she could suffer violence and ostracism from her family and society: CB 77.2.
e)The Tribunal did not consider country information from India and the country information was not included in the Court Book. The RRT should have considered country information to consider how a social group is to be defined: NAIV v MIMIA [2004] FCA 457 at [51] (“NAIV”).
f)The Tribunal erred in failing to appreciate that persecution can be suffered not only through the positive harm of her father and her family (non-State agents) but also through “the discriminatory inactivity of State authorities in not responding to violence of non-State agents”: MIMA v Khawar (2001) 76 ALJR 667 at [85] and [87].
g)The Tribunal was provided with evidence from the Applicants (CB 20.4) that indicated that the Indian government and police were unwilling to protect the female Applicant against violence against women.
h)The Tribunal failed properly to consider whether women were a particular social group for determining whether the withholding of protection on the basis of gender could be characterised as a Convention reason.
i)The Tribunal should have found that “women in any society are a distinct and recognisable group”: Khawar at [35]. Any other finding was “virtually impossible”: SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR at 43 at [49]. The Tribunal erred in wrongly construing or placing too much importance on the word “membership” in the definition of “refugee”: CB 76.7.
j)This error infected the Tribunal’s analysis of other aspects of its consideration of the Applicant’s claims, including its refusal to consider subcategories of the social class of women. It was open to the Tribunal to find that there was a social group consisting of “women who marry against their families wishes”: Khawar at [81], Applicant S v MIMA [2004] HCA 25, Dranichnikov v MIMA (2003) 197 ALR 389 and SZAQK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 407 [8].”
Submissions
The applicant did not file any written submissions nor was there any substantive oral submissions made in support of the amended application. The material delivered from the bar table was limited to very generalised statements regarding her marriage and the resultant dispute with her parents. These are briefly canvassed above.
The respondent filed written submissions which addressed the substantive issues. It was submitted that the amended application claimed that the RRT erred in considering whether the applicant was a member of a social group, but as the RRT assumed she was a member of a social group (CB pp.76.9-77.1) these complaints were without substance. It was submitted that Minister for Immigration & Multicultural Affairs v Khawar (“Khawar”) is not relevant as the evidence before the RRT unlike that in Khawar did not suggest a systematic failure of the state to provide protection for reasons of the applicant’s membership of a social group. It was submitted that the RRT’s conclusion that the applicant’s father was not motivated by a Convention reason was a factual reason that necessitated the failure of the applicant’s claim: Ram v Minister for Immigration & Ethnic Affairs per Burchett J at 568; Applicant A vMinister for Immigration & Ethnic Affairs per Dawson J at 240-242, per McHugh J at 258, per Gummow J at 284.
It was submitted that this Court cannot review the merits of the RRT decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 272. Further, it was submitted that there was no error of law let alone a jurisdictional error in the RRT making an oral finding of fact: Abebe v Commonwealth of Australia at 137.
Conclusion
I am satisfied that the RRT found that any persecution of the applicant feared from her father was not for a Convention reason as it was motivated by personal reasons rather than the applicant’s membership of a social group. Any ostracism that the applicant faced was insufficiently serious to amount to persecution for Convention purposes.
I am satisfied that the current attempts to reinvigorate the review of the RRT decision of 1998 is an abuse of process and that the applicant has had every opportunity to pursue the appropriate avenues of review of this original decision. The unwarranted delays and the abandonment of proceedings in the Federal Court support this position. The substantive application does not raise any issue that indicates that the RRT decision in 1998 was infected by jurisdictional error. Consequently, I uphold the Notice of Motion brought by the respondent and dismiss the applicant’s substantive application.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 December 2004
3
5
0