CVA15 v Minister for Immigration
[2017] FCCA 132
•30 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVA15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 132 |
| Catchwords: MIGRATION – Independent Merits Reviewer – protection (class XA) visa – second application for judicial review in respect of the same decision of the Independent Merits Reviewer – first application discontinued – whether second application is an abuse of process – whether Independent Merits Reviewer should have considered who certain unknown attackers were – whether the Independent Merits Reviewer failed to adequately consider a claim under the complementary protection criteria. |
| Legislation: Migration Act 1958, ss.5, 36, 486D Federal Circuit Court Rules 2001, r.13.10(c) |
| Cases cited: BZAGD v Minister for Immigration [2015] FCCA 3471 BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 Joshi v Minister for Immigration and Border Protection (2016) 311 FLR 505; [2016] FCCA 2168 MZAER v Minister for Immigration and Border Protection [2016] FCA 1426 MZAER v Minister for Immigration and Border Protection [2016] FCCA 782 SZBQV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 157 SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170 SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207; (2012) 126 ALD 63; (2012) 286 ALR 331; [2012] FCAFC 26 Walton v Gardiner (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) ALJR 485; (1994) 11 EPLJ 446c; [1993] HCA 77 |
| Applicant: | CVA15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File number: | MLG 2876 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 14 and 28 November 2016 |
| Date of last submission: | 28 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2017 |
REPRESENTATION
| Counsel for the applicant: | Jessie Taylor |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the first respondent: | Julia Lucas |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The application in case filed on 2 November 2016 by the first respondent be dismissed.
The applicant have leave to file the proposed amended application dated 28 November 2016.
DECLARATION
The recommendation of the Independent Merits Reviewer made on 15 October 2012 in case number JES059 involved a denial of procedural fairness consisting of a failure to properly consider and apply the complementary protection provisions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2876 of 2015
| CVA15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second respondent
REASONS FOR JUDGMENT
Introduction
There is before the court an application in a case filed on 2 November 2016 seeking that an application filed on 29 December 2015 (and sought to be amended by a proposed amended application dated 28 November 2016) be dismissed as an abuse of process pursuant to r.13.10(c) of the Federal Circuit Court Rules 2001. The application in a case was filed by the first respondent. The substantive application and proposed amended application seek review of a recommendation made by an Independent Merits Reviewer (“IMR”). The recommendation was that the applicant not be recognised as a person to whom Australia owes protection obligations.
Procedural history
The IMR’s recommendation was dated 15 October 2012. The applicant sought review in this court by an application filed on 10 December 2012. The proceeding was MZZDS v Minister for Immigration and Border Protection and Anor, MLG 1569 of 2012 (“MZZDS”). The matter came before Judge Turner of this court on 19 June 2013. At that point, the applicant was unrepresented. He asked for an adjournment of at least two months to enable him to obtain assistance from a private lawyer. Judge Turner granted an adjournment to 7 October 2013. However, on 24 September 2013 the applicant filed a notice of discontinuance. Judge Turner then made an order in chambers striking out the proceeding. That order was a nullity, because the proceeding had been discontinued and there was nothing to strike out.
The applicant filed an application in a case on 21 June 2016 in MZZDS seeking leave for the notice of discontinuance to be set aside. The applicant became represented by lawyers in MZZDS on 5 July 2016. The applicant’s application in a case filed on 21 June 2016 was heard and dismissed on 14 November 2016 for reasons given orally on that day. That is, the applicant was not given leave to withdraw his notice of discontinuance in MZZDS.
In the meantime, on 29 December 2015, the applicant filed the current application for review in respect of the same decision of the IMR. At that point, the applicant was not represented by solicitors. He became represented by solicitors in the current proceeding on 6 July 2016.
The applicant, on 28 November 2016, provided to the court and the first respondent a proposed amended application which he sought leave to file, if the court did not find that the current proceeding is an abuse of process. The first respondent did not oppose leave to amend being granted in those circumstances. The applicant and the first respondent agreed that, if the court did not dismiss the current application as an abuse of process, the court should proceed to determine the substantive application, as amended, without any further hearing.
The applicant did not require an extension of time to file the current application, as it seeks review of a decision of an IMR. There is no time limit for such applications: SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207; (2012) 126 ALD 63; (2012) 286 ALR 331; [2012] FCAFC 26.
The abuse of process issue
The first respondent argued that the current proceeding should be dismissed as an abuse of process because the applicant had voluntarily discontinued his first application seeking review of the recommendation of the IMR. The first respondent relied on the decision of Judge McGuire of this court in MZAER v Minister for Immigration and Border Protection [2016] FCCA 782. In that case, his Honour dealt with a matter in which the applicant filed a notice of discontinuance in respect of his application to review a decision of the Refugee Review Tribunal, and later filed another application to review the same Tribunal decision.
In MZAER, Judge McGuire said:
7.The record shows that the applicant’s first application was discontinued on 6 August 2014. He filed his second application on 14 November 2014. Counsel for the first respondent argues that the process of filing a second application dealing with the same subject matter as the first and seeking the same remedy is simply a tactical ploy to avoid the heavy onus and strict requirements of a party seeking to withdraw a notice of discontinuance. Counsel says that the same strict standards should apply and the application is therefore an abuse of process.
…
13.In the matter before me, however, there is no application to set aside the Notice of Discontinuance. Rather, this applicant has simply filed a second application seeking the same remedy in respect of the same subject matter. I see no reason to make distinction in respect of the above principles and their bases.
14.There is no suggestion of fraud or duress in the filing of the Notice of Discontinuance. That Notice of Discontinuance otherwise deals with and finalises the application. It is simply then impermissible to contemplate further applications in respect of the same issue, seeking the same remedy. It follows that I accept the submissions of counsel for the first respondent that the second application represents an abuse of process and should be dismissed. (emphasis added)
However, Judge McGuire did go on to consider the merits of the substantive application, for which an extension of time was required. His Honour considered that the applicant had not adequately explained his delay in bringing the second proceeding (he had sought Ministerial intervention) and, in any event, the substantive application lacked merit.
Judge McGuire’s decision in MZAER was upheld on appeal by Logan J in MZAER v Minister for Immigration and Border Protection [2016] FCA 1426. On appeal, Logan J noted that the grounds of review in the second application were the same as those in the discontinued application, and the grounds were expressed “at the most general of levels.” Logan J upheld the appeal on the basis that there was no error in Judge McGuire’s consideration of the merits of the application. In relation to the abuse of process point, Logan J did not uphold Judge McGuire’s decision.
Logan J said at [22] and [23] of MZAER:
22.The absence of any reasonable prospect of success in respect of an appeal is reason enough to dismiss this application. I prefer to dismiss the application on that basis. That is because I am by no means persuaded that the mere filing of a second application for extension of time and judicial review following a unilateral notice of discontinuance is in itself an abuse of process. I prefer to leave that as an open question. As to that, I note that r 13.02(3) of the Federal Circuit Court Rules 2001 (Cth) could be read as being premised on it not being an abuse of itself to institute a further proceeding. I say that because the rule seems to assume a power to stay the further proceeding until the costs which followed the earlier discontinuance have been paid. (emphasis added)
23.This approach to the basis for dismissal corresponds with that promoted by the Minister. The Minister did not concede that the second proceeding was not an abuse, but instead chose to focus primarily on the merits of the proposed grounds of appeal. It is because I do not consider that the proposed grounds have any reasonable prospects of success that I dismiss the application for an extension of time and related leave to appeal.
A clearer and stronger statement of the position was set out in SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170 by Cowdroy J. His Honour said in that case:
27.I do not consider that every time an application is discontinued before a hearing has taken place and proceedings of the same nature are subsequently instituted, it must necessarily follow that the re-instituted proceedings are an abuse of process. The question whether an abuse of process has occurred is a matter of discretion, and it is a discretion which, in my opinion, should be cautiously exercised in circumstances where no issue estoppel arises. Whilst the High Court indicated in Walton v Gardiner that proceedings may be stayed as an abuse of process even where there is no issue estoppel if their continuance would be ‘unjustifiably vexatious and oppressive’, the Court also made it clear that this should only occur in an extreme or exceptional case.
28.In my opinion, upon a plain reading of the reasons of Raphael FM, his Honour did not exercise a discretion at all. The passage from his Honour’s reasons, reproduced at [14] above, suggests that his Honour considered that the law required the strike out of the application simply because a second application had been filed. I consider this proposition is incorrect. The authority relied upon by his Honour (Applicant S503) was clearly distinguishable from the present case and, furthermore, an allegation of abuse of process must be considered specifically upon the facts of the particular case. His Honour may have been entitled to strike out the application after considering all of the circumstances, but it was not a foregone conclusion that the application was an abuse of process. In view of the observations of the High Court that the power should be used only in exceptional and extreme cases, I would have doubts about the appropriateness of dismissing the application at all. (emphasis added)
SZFOG is binding on this court. It requires the court to consider the specifics of the case to decide whether the current application is an abuse of process. Contrary to the first respondent’s submissions, and contrary to Judge McGuire’s decision in MZAER, it is not inevitably the case that, after a notice of discontinuance has been filed, a second application to review the same decision will be an abuse of process.
For completeness, the parties’ noted the well-known passage from the High Court’s decision in Walton v Gardiner (1993) 177 CLR 378 at 392-93; (1993) 112 ALR 289; (1993) 67 ALJR 485; (1994) 11 EPLJ 446c; [1993] HCA 77 as follows:
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. 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. 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 as “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”. (citations omitted) (emphasis added)
It is also worth noting the conclusion reached by Mason CJ, Deane and Dawson JJ as follows (CLR at 398-99):
It follows from what has been said above that the Department has failed to identify any error of principle or fact affecting the Court of Appeal’s decision that the current proceedings in the Tribunal should be permanently stayed. As has been said, that decision was the result of a weighing process involving a subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings in the Tribunal would be so unfairly and unjustifiably oppressive of the respondents as to constitute an abuse of the Tribunal’s process. As the different conclusions reached by Gleeson C.J. and Kirby P. on the one hand and Mahoney J.A. on the other indicate, the comparative weight to be given to particular considerations and factors in that weighing process and the ultimate outcome of it involved a substantial element of individual judgment. … (citations omitted) (emphasis added)
As that conclusion makes clear, the determination that a second proceeding is an abuse of process is not “automatic”, as the first respondent submitted, but the result of a careful weighing of the circumstances of the particular case.
It is also worth noting that the facts of Walton v Gardiner are readily distinguishable from the facts of the present case. In Walton v Gardiner, the facts were summarised in the headnote as follows (CLR at 379):
In 1986 complaints against three medical practitioners were referred to the Medical Tribunal constituted under the Medical Practitioners Act 1938 (N.S.W.). The complaints alleged misconduct in the treatment of patients at a private hospital between 1973 and 1977. The New South Wales Court of Appeal ordered a permanent stay of the complaints against two of the practitioners on the ground that they were an abuse of process because of the prolonged delay after the relevant facts were known. The Medical Tribunal itself stayed proceedings against the third practitioner. A subsequent Royal Commission reported adversely on the conduct of the practitioners. In 1991 fresh complaints were made against them which, though not the same as the earlier complaints, arose out of the same pattern of professional conduct as had given rise to the earlier complaints and raised issues which substantially overlapped those that would have arisen under the earlier complaints. The Court of Appeal stayed the new complaints on the ground that they were so unfairly and unjustly oppressive as to constitute an abuse of process.
In Walton v Gardiner, the complaints to the Medical Tribunal were brought by a delegate of the Secretary of the New South Wales Department of Health, who can be assumed to have been well advised and well resourced. Here, the applicant is an asylum seeker who was unrepresented when his notice of discontinuance was filed. In Walton v Gardiner, the earlier proceedings had been stayed by the New South Wales Court of Appeal. Here, the earlier proceedings were discontinued by the filing of a notice. In Walton v Gardiner, the earlier proceedings involved complaints that substantially overlapped with the complaints in the subsequent proceedings. Here, the original grounds and the proposed amended grounds are very different, no doubt because the applicant has gained the benefit of legal assistance for the preparation of the proposed amended application. In Walton v Gardiner, the respondents were individuals, who would no doubt have been personally and substantially vexed by the subsequent proceedings. In the present case, the first respondent is a Minister of the Crown, with all that entails, and the second respondent is taking no part in the proceeding.
The parties also spent a good deal of time discussing the decision of Judge Jarrett of this court in BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471 and the decision of Rangiah J in the appeal from that decision in BZAGD v Minister for Immigration and Border Protection [2016] FCA 670.
The facts of BZAGD were somewhat similar to the present case. The applicant in BZAGD filed an application out of time seeking an extension of time and, if granted, seeking review of a decision of the Refugee Review Tribunal. He later filed a notice of discontinuance. The applicant then filed another application seeking review of the same Tribunal decision. When the matter came on for hearing, Judge Jarrett directed the applicant to file an application seeking leave to withdraw the notice of discontinuance in the first proceeding. The applicant filed such an application. Judge Jarrett dismissed both the application in a case and the second application, after considering it on the merits.
In BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 Rangiah J said:
7.The Federal Circuit Court ordered that both the application in a case and the second proceeding be dismissed. The primary judge noted that there was no express power in the Federal Circuit Court Rules 2001 (Cth) to set aside a notice of discontinuance. However, his Honour accepted that the Court has an inherent power to set aside a notice of discontinuance in exceptional circumstances in order to prevent injustice or avoid an abuse of its processes, relying on SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (Ryan J).
8.The applicant, who was represented by Counsel before the Federal Circuit Court, argued that the applicant should be permitted to withdraw the notice of discontinuance because he filed it on the mistaken understanding that if he continued the proceedings and failed he would be exposed to criminal penalties. … The primary judge held that the applicant made a voluntary decision to file the notice of discontinuance and that he was not induced by the respondents to do so. His Honour considered that there was no basis to set aside the notice of discontinuance.
9.The primary judge went on to consider the applicant’s prospects of success in his application for an extension of time in the first proceeding. His Honour noted that the first proceeding had been filed about two months out of time so that an extension of time under s 477(2) of the Act would be required. ...
10.The primary judge then turned to the merits of the substantive application … .
…
12.For these reasons, his Honour held that the proposed application for judicial review had no real prospects of success. His Honour held that even if the notice of discontinuance were set aside, the application for an extension of time would be refused. The primary judge went on to hold that it was also appropriate for the second proceeding to be dismissed. Although his Honour did not say so in terms, I understand the basis of the dismissal to be that an extension of time to file the second proceeding would be refused because it had no real prospect of success.
…
16.… His Honour’s consideration of the circumstances in which a notice of discontinuance may be set aside was correct except perhaps in one respect. His Honour considered that the Federal Circuit Court has an implied power to set aside a notice of discontinuance in order to prevent injustice. To the extent that his Honour may be taken to be saying that the power may be exercised in the interests of justice, it is inconsistent with a judgment of the Full Court of the Federal Court in Chen v Monash University [2016] FCAFC 66 delivered after the judgment of the Federal Circuit Court.
…
19.In case he was wrong, his Honour proceeded to consider whether the extension of time to file the application should be granted. His Honour’s approach to this issue was orthodox. His Honour’s analysis of the applicant’s prospects of success in his substantive application was, in my view, correct.
…
22.For these reasons, the applicant’s application for leave to appeal will be dismissed and the appeal he has purported to commence by notice of appeal will be dismissed. The applicant will be ordered to pay the respondent’s costs of the application.
In BZAGD, it was not said, at first instance or on appeal, that, where an application for judicial review is discontinued, it is an abuse of process to file another application for judicial review of the same decision. I note that, at paragraph 25 of his written submissions, the first respondent said that Judge Jarrett dismissed the second application without considering it on the merits at all. That is completely false. Judge Jarret considered the merits of the matter at paragraphs 38 to 54 of his Honour’s reasons for decision.
The parties also discussed at length the decision of Judge Nicholls of this court in Joshi v Minister for Immigration and Border Protection (2016) 311 FLR 505; [2016] FCCA 2168. In that case, Judge Nicholls considered a case in which an applicant had filed an application for judicial review of a decision of the Migration Review Tribunal, filed a notice of discontinuance in respect of that application, then filed a second application for judicial review of the same Tribunal decision. Judge Nicholls dismissed the second application for judicial review on the basis that the applicant had failed in that application to disclose his earlier application, thus contravening s.486D of the Migration Act 1958.
In addition, in obiter, Judge Nicholls said:
86.… In essence, by this submission, the Minister seeks summary dismissal of the application to extend time. In this light the Minister’s submissions were silent on the proposition that the power to dismiss an application summarily should be exercised with caution.
…
88.The absence of such consideration in the Minister’s submission leaves these submissions, in my view, with an approach which can only be described as formulaic. In essence, the Minister proposes that in all cases, an application to extend time which is in relation to the same Tribunal decision, which was the subject of a Notice of Discontinuance of an earlier application for judicial review, should simply be dismissed on that basis.
…
99.It is the case that the repeated bringing of similar applications, where it would be unjustifiable, oppressive or vexatious, or would bring the administration of justice into disrepute, may be an abuse of process (see Walton and Rogers v The Queen (1994) 181 CLR 251 at [4] - [6]). It is also the case that there is a public interest in the finality of litigation and that a party should not be repeatedly vexed in the same matter (Johnson v Gore Wood & Co [2002] 2 AC 1 at [22] - [34] per Lord Bingham).
…
101.It may be that even this could have been overcome had the facts of this case been similar to cases often seen in this Court in the past. That is, of an applicant who, having had a hearing of their application before this Court, and the Federal Court and then unsuccessfully sought leave to appeal in the High Court, then sought to recommence their matter in this Court (see for example SZGIT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1543, SZHAC v Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 854 and NBGO v Minister for Immigration and Citizenship [2009] FMCA 177). This is not such a case.
102.I decline to follow MZAER as the Minister urges in the current circumstances. To the extent that MZAER may be said to provide the basis for the Minister’s approach to the matter of abuse of process in this case, then I do not respectfully agree with the approached (sic) taken in MZAER. In my respectful view, a far more appropriate approach would be to have followed what Judge Jarrett did in BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471 (BZAGD) (and see BZAGD v Minister for Immigration and Border Protection [2016] FCA 670).
…
105.His Honour proceeded to consider the matter in that light, and including consideration of the prospects of success on the extension of time application (see BZAGD [30] - [54]). The Court did not proceed to simply summarily dismiss the application to extend time as an abuse of process.
Suffice to say that Judge Nicholls in Joshi did not support the Minister’s submission in the present case that, where an application for judicial review has been discontinued, it will inevitably follow that a second application for judicial review in respect of the same Tribunal decision will be dismissed as an abuse of process.
The parties also referred to SZBQV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 157. However, that case was materially different. In that case, an application for judicial review of a decision of the Refugee Review Tribunal was dismissed for failure to comply with a self-executing order that had been made by consent. The applicant then filed another application for judicial review. It was heard by Raphael FM. His Honour considered whether the self-executing consent orders should be set aside and decided that they should not be. His Honour also considered the merits of the substantive application and decided that they did not disclose jurisdictional error. Raphael FM’s decision was appealed to the Federal Court. Jacobson J held that there was no error in it.
The applicant in SZBQV then filed another application for judicial review of the Tribunal’s decision with somewhat different grounds. The second judicial review application was heard by Barnes FM. Her Honour said:
27.The prior proceedings in this instance were also dismissed for failure to comply with orders. Nonetheless Jacobson J considered whether or not there was arguable case of jurisdictional error. The applicant now relies on an application cast in somewhat different terms and has filed the document headed: applicant’s submissions on appeal which raises other matters. However the substance of the matters raised by him are matters that were canvassed sufficiently in the earlier decisions. In particular, the grounds that seek merits review do not, as was recognised by both of the earlier judgments, provide a basis for an arguable ground of jurisdictional error. The claim that there was a breach of s.424A or a lack of procedural fairness was considered but not found to be an arguable ground by Jacobson J. The applicant also now seeks to raise s.425, but the claim does not go beyond that considered by Jacobson J. Moreover, while the applicant takes issue with the Tribunal hearing, there is no transcript of the Tribunal hearing before the Court. Nor was there before the earlier Courts. There is nothing before the Court to support the claim of breach of s.425 or the claim of a lack of procedural fairness.
28.The generally expressed claims raised by the applicant in the current application for review do not raise fresh matters such as to indicate that these proceedings are not clearly foredoomed to fail, based on the Tribunal decision and the matters dealt with in the prior proceedings.
29.The applicant claims that he is unrepresented and has no legal adviser to assist him. However he had the benefit of legal advice in his prior proceedings before the Federal Magistrates Court and in the Federal Court. He had ample opportunity to bring forward any legitimate and bona fide claim and to inform the Court and the respondent of the nature and evidentiary basis for any such claim.
30.The current application and affidavit raise issues which were in essence considered by Federal Magistrate Raphael and Jacobson J and found to reveal no arguable jurisdictional error. Jacobson J found no arguable case of jurisdictional error. In all of those circumstances I consider that the bringing of the current application can be considered unjustifiably vexatious amounting to an abuse of process, particularly having regard to the underlying public interest in the finality of litigation. I am satisfied that the present proceedings are an abuse of process and ought to be summarily dismissed to avoid further public expense in defending proceedings that have already taken up the resources of the Federal Magistrates Court, the Federal Court and the High Court and that have raised no arguable case.
Clearly, SZBQV is readily distinguishable from the present proceeding. In that case, the first application was dealt with on the merits by Raphael FM, and that consideration was the subject of an appeal. There has been no consideration of the merits in the present case.
All in all, the authorities are clear. Where an application for judicial review of a migration decision has been discontinued, and a fresh application has been filed, it is necessary to consider the particular facts of the case to determine whether the new application is an abuse of process.
Turning to the question of whether the second application in the present case is an abuse of process, the first respondent said in his written submissions at [31] and [32] that:
31.First, the principles which govern the setting aside of a notice of discontinuance set a necessarily high bar which should carry substantial weight in considering whether the applicant's act in lodging a second application for judicial review constitutes an abuse of process. In particular, the Full Court’s acceptance in Chen at [47] (set out above), that it would be inconsistent with the principle of finality which otherwise governs the setting aside of the process of dismissing an appeal if the Court had a general power to reinstate an appeal “in the interests of justice”, demonstrates the relative importance placed by the Court on the principle of finality. That is, there are exceptional and very limited circumstances which will enliven the Court’s implied power to set aside a notice of discontinuance other than where the party who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.
32.The Minister submits that in the event that in this case, the applicant is unsuccessful in respect of his application to set aside a notice of discontinuance, the Court should view his lack of success in respect of that application as a strong and countervailing factor in favour of a finding that the second judicial review application constitutes an abuse of process. That is, having regard to the high threshold propounded by the principles with respect to setting aside a notice of discontinuance, it would be nonsensical for those principles to be watered down by allowing the applicant to have another bite at the cherry by lodging a further application. In this case, the applicant has not advanced any reasons strong enough to outweigh the countervailing principle of finality of litigation other than to say that that he has since had the benefit of legal advice. (citations omitted)
I do not accept that argument. The withdrawal of a notice of discontinuance is a completely separate matter from the question of whether the second proceeding is an abuse of process. In this context, I note the decision of Judge Cameron of this court in SZVGM v Minister for Immigration & Anor [2016] FCCA 1602 at [5], where his Honour said:
Of course, a notice of discontinuance does not prevent the discontinuing party from pursuing their claim at a later time within the applicable limitation period. It does not operate as an issue estoppel or res judicata. However, in migration cases such as this s.477 of the Act sets a limitation period of only thirty-five days from the date of the Tribunal’s decision and so there is practical advantage in reinstating a proceeding rather than starting a new one and having to seek an extension of the time for the bringing of the proceeding.
As mentioned above, there is no applicable limitation period as the decision sought to be reviewed is a decision of an IMR.
The first respondent then argued in his written submissions at [33] and [34] that:
33.Further, in support of the Minister’ (sic) submission that the second judicial review proceeding constitutes an abuse of process, the Court should have regard to the lengthy procedural history of this matter.
34.The applicant commenced his first judicial review proceeding in December 2012 at which time he noted that he could not afford to pay a private lawyer and was having difficulties obtaining free legal assistance. He successfully applied for an adjournment of the hearing in June 2013 so that he could obtain legal representation and discontinued shortly after the matter had been adjourned. The applicant’s second judicial review application was lodged over 2 years later (on 29 December 2015) at which time, he foreshadowed, “further grounds will be provided once I obtain legal representation.” Victoria Legal Aid came on the record on 13 January 2016. The applicant has not provided any justification in relation to what efforts he made in the 3 years between lodging his application in December 2012 and securing the assistance of Victoria Legal Aid in January 2016. Further, in that time, the Court accommodated an adjournment of the hearing in relation to the first judicial review application so that the applicant could obtain legal assistance. The applicant has not properly explained what steps he has taken since filing his first judicial review application to obtain legal assistance.
I do not accept that a delay of three years in bringing the present proceeding amounts to an abuse of process, particularly in circumstances where there is no time limit on bringing judicial review proceedings in respect of decisions of an IMR.
The first respondent then said in his written submissions at [35] that:
Further, the fact that the applicant did not have a final hearing on the merits of his prior application is not of itself a bar to a finding that the present proceeding is in all the circumstances, an abuse of process. (citation omitted)
It may be true that the fact that the applicant has never had a hearing on the merits is not a bar to a finding that the present proceeding is an abuse of process. However, the lack of a hearing on the merits at an earlier stage is a very weighty factor. Obviously, it means that the justice of the case has never been determined by a court. It also means that the first respondent has never been put to the cost or vexation of a hearing about the merits of the case.
A significant factor in the present case is that the grounds sought to be argued by the applicant in the present proceeding have at least been particularised, unlike the grounds in the discontinued proceeding. The ground in the discontinued proceeding was:
1.That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.
The only ground in the proposed amended application is:
The Independent Merits Reviewer erred in her application of the complementary protection criteria in s36(2)(aa) of the Migration Act 1958 in that:
(a)The IMR failed to consider who, if not the SLA, was responsible for the March 2011 incident, and whether the complementary protection criteria were triggered in relation to a paramilitary group or any other non-state actor; and
(b)The IMR considered the complementary protection claims to be “the same as” the claims for protection under s36(2)(a).
Without considering whether the new grounds have merit, they at least have the appearance of being arguable. The applicant is now represented by solicitors and counsel who have put forward the new grounds in a proper form, and with written submissions in support of them.
It is also significant that the applicant appears to be bona fide in bringing the new grounds, in the sense that he was content for the court to determine them on a final basis, and did not seek any further delay in the proceeding.
In all the circumstances of this case, I am not persuaded that the second application in this matter is an abuse of process, at least in its amended form. The fact that the application for judicial review has never been determined on the merits, combined with the fact that the applicant now appears to have grounds that are arguable and brought bona fide, seems to me to be sufficient to conclude that the second application is not an abuse of process. I acknowledge that the need for finality in litigation is a significant factor. However, it is less weighty in circumstances where there has never been a determination on the merits. The delay in this matter is also significant. However, as there is no time limit for review of IMR decisions, it is a less weighty factor than it might have been if this had been a review of a decision of the Refugee Review Tribunal or the Administrative Appeals Tribunal. The first respondent’s application in a case seeking the dismissal of the second application will be dismissed.
If the court determined that the second application should not be dismissed as an abuse of process, the Minister did not oppose leave being granted to amend the application in the form dated 28 November 2016. It seems to me to be proper to grant that leave and an order will be made to that effect.
The applicant’s claims
The applicant claimed that:
a)he is a Hindu Tamil who was born in Jaffna in 1987;
b)the Sri Lankan Army had an ongoing interest in him and his family;
c)he had two brothers, X and Y;
d)X left Sri Lanka in 2007;
e)Y left Sri Lanka in 2011;
f)the applicant’s mother made a complaint to the Human Rights Commission of Sri Lanka (“HRC”) to the effect that:
i)her son, Y, had previously been abducted by unknown, armed persons who tortured him and then dropped him beside the road;
ii)on 8 March 2011, the same unknown people went to the applicant’s family home in search of Y;
iii)Y was not at home;
iv)the unknown persons badly assaulted the applicant’s mother and father; and
v)the unknown people left, making death threats as they went;
g)the complaint was recorded in a letter signed by a legal officer of the HRC; and
h)the HRC letter was provided to the IMR.
The IMR’s reasons
The IMR accepted that the HRC letter was genuine. The IMR said at page 30 of her reasons for decision:
In short, I reject all the claims that the claimant is of ongoing adverse interest to the Sri Lankan authorities as evidenced by their torturing his eldest brother while asking questions about him (the claimant). I reject claims that the family is constantly harassed by the authorities, accepting instead that the SLA went to the house in 2009 as part of a post-war accounting process.
I accept the information in the Human Rights letter that “unknown people” were looking for [Y] in March 2011 and that they “badly assaulted” the parents because the son was not to be found. There is no indication that the “unknown people” were in fact the SLA, nor that they were interested in anyone except [Y] specifically. It is not unreasonable to speculate that this may be a personal matter and the reason for [Y’s] departure. The claimant has already testified that he and his brothers had passports. (emphasis added)
The IMR said at page 33 of her reasons for decision:
In looking at the claimant’s case in its totality, I find that the claimant does not have a well-founded fear of persecution for reason of his ethnicity (including in this category his religion, Tamils being predominantly Hindu), his imputed political opinion as an LTTE sympathizer, his membership of a particular social group constituted by young Tamil males from the north or by failed asylum-seekers, nor for any other Convention reason.
…
As I have found the claimant not to meed the refugee criterion in s.36(2)(a), I must consider his claims under the complementary protection criterion. This is designed to protect those where, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. The claimant’s adviser addressed this issue at the end of her submission dated 27 July 2012. I have read this carefully and note that all the claims put forward under the complementary protection heading are the same as those put forward in the earlier part of the submission concerning refugee status. The harm feared is harm that would be perpetrated by the Sri Lankan authorities against the claimant for reason of his being a Tamil, a person imputed with pro-LTTE sentiments, and someone who has sought asylum in a western country. For one or more of these reasons, the adviser contends that the authorities may inflict significant harm on the claimant, even the arbitrary deprivation of his life. The adviser has not offered any further, or different, evidence or country information but “relies on the contents of this submission together with the country information provided” – all of which were in support of the claims to be a Convention refugee.
The IMR said at page 34:
I have dealt at some length with the claims relating to the refugee status of the claimant and I have found that there is no real chance that serious harm will befall him on his return to Sri Lanka for any Convention reason. This finding comprehensively covers the claims put forward by the claimant and his adviser under the additional heading of “Complementary protection”. In addition to this Convention-based assessment, I am not satisfied that there are substantial grounds for believing there is a real risk of significant harm on the facts as found above. I am satisfied that there are no instances of possible future “significant harm” which I have not considered while addressing “serious harm” in relation to the refugee claims. There is nothing that the claimant has advanced that has not already been considered and found not to invoke Australia’s protection obligations.
Grounds of review
The only ground of review in the amended application is:
The Independent Merits Reviewer erred in her application of the complementary protection criteria in s36(2)(aa) of the Migration Act 1958 in that:
(a)The IMR failed to consider who, if not the SLA, was responsible for the March 2011 incident, and whether the complementary protection criteria were triggered in relation to a paramilitary group or any other non-state actor; and
(b)The IMR considered the complementary protection claims to be “the same as” the claims for protection under s36(2)(a).
The applicant argued that the IMR was obliged to consider:
a)who the unknown attackers were, if they were not the Sri Lankan Army (“SLA”); and
b)whether they were linked to non-state actors.
I do not accept those arguments. It was for the applicant to make out his case. The HRC letter said that the attackers were unknown. The applicant said he believed the attackers to be from the SLA. The IMR rejected that claim, saying that there was no indication that the attackers were from the SLA. The IMR preferred the evidence from the HRC letter to the effect that the attackers were unknown. A finding based on that preferred evidence was open to the IMR.
The IMR was aware that there were other possibilities besides the attackers being from the SLA. One such possibility was that the attackers were pursuing Y for personal reasons. The IMR noted that as a speculative possibility.
The applicant criticised the IMR for that speculation, saying that it was a finding without evidence. However, it was not a finding. It was speculation, as the IMR expressly stated. The IMR was simply saying that, like the applicant’s mother, she did not know who the attackers were. The IMR went on to say that she was not satisfied that the attackers were from the SLA.
As the applicant did not provide sufficient material for the IMR to reach the appropriate state of satisfaction that the attackers were from the SLA, it was proper for the IMR to reject that claim. It was not for the IMR to make enquiries to find out who the unknown attackers were, especially as there were no simple and obvious enquiries that could have provided a clear answer to that question.
I note, in passing, that it makes no sense that the applicant’s mother said in her HRC complaint that the unknown attackers at her home were the same as the unknown attackers who left Y beside the road. She could not have known that.
The applicant also argued that the IMR failed to consider the attack on the applicant’s family home under the complementary protection criteria, and simply treated the Refugees Convention grounds as being the same as the complementary protection grounds.
It is true that decision makers should not conflate the Refugees Convention criteria with the complementary protection criteria. However, where an applicant relies on the same claimed events to meet both the Refugees Convention criteria and the complementary protection criteria, decision makers can, in an appropriate case, rely on their discussion of the incidents under the Refugee Convention criteria as part of their reasoning in relation to the complementary protection criteria.
The applicant acknowledged in written submissions to this court that in his written submissions to the IMR he did not separate out his Refugee Convention claims from his complementary protection claims, but said that he faced significant harm and serious harm by reason of the same circumstances.
However, in this case, it was an established fact that the applicant’s parents were attacked and “badly assaulted” in their home by unknown people. Being “badly assaulted” obviously fits within the definition of significant harm in s.36(2A) of the Act, which is as follows:
A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
Being “badly assaulted” is at least “cruel or inhuman treatment”, which is defined in s.5(1) of the Act to mean:
an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The “Covenant” is defined in s.5(1) of the Act to mean:
the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986 .
It was implicit, if not explicit, in the applicant’s claims that he was exposed to the same harms to which other members of his family had been exposed. Consequently, it was necessary for the IMR to consider whether the applicant faced a real risk of being “badly beaten” by unknown persons, who may have been looking for Y. To answer this question, the IMR needed to consider:
a)whether there was a real risk that the unknown attackers would return to the family home and attack its inhabitants again;
b)whether the applicant lived at the family home; and
c)if not, whether there was a real risk that the unknown attackers would be able to find the applicant elsewhere, and attack him there, while looking for Y.
If the IMR was satisfied of those matters, then the IMR needed to consider the matters raised in s.36(2B) of the Act, which are as follows:
… there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
There is no indication that the IMR considered these matters. On the contrary, the IMR’s reasoning indicates that she understood her findings about persecution to apply equally to significant harm, when, in respect of the attack at the family home, they clearly do not. The IMR’s statement at page 34 of her statement of reasons that:
I am satisfied that there are no instances of possible future “significant harm” which I have not considered while addressing “serious harm” in relation to the refugee claims
is not sufficient to demonstrate the required engagement with the issues.
Consequently, the IMR denied the applicant procedural fairness by failing to properly consider and apply the complementary protection provisions to the established facts of this case.
Conclusion
As there was a denial of procedural fairness on the part of the IMR, there will be a declaration to that effect and an order that the first respondent pay the applicant’s costs. As the matter was heard over more than one day, and had a convoluted procedural history, I will hear the parties on the quantum of costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 30 January 2017
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